Saturday, October 5, 2013

Fault Theory /Matrimonial Offence Theory Rejected-S.C -Darshan Gupta Vs Radhika Gupta



Key Points Raised in the Judgement : 
"Fault theory’. -"The party seeking divorce under the “matrimonial offence theory” / the “fault theory” must be innocent. A party suffering “guilt” or “fault” disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage.But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party, and not fault of the party which has approached the Court. Therefore, if a husband’s act of cruelty, compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage, on the ground of desertion. The reason being, that it is the husband himself who was at fault, and not the wife."

Full Text of Supreme Court of India Judgement : 

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6332-6333 OF 2009

Darshan Gupta                                               ... Appellant
Versus
Radhika Gupta                                                ... Respondent

J U D G M E N T
Jagdish Singh Khehar, J.


The marriage between the appellant-husband, Darshan Gupta and the respondent-wife, Radhika Gupta, was solemnized on 9.5.1997 at the Holiday Inn Hotel in Hyderabad, as per Hindu rights and customs. This was not the first matrimonial alliance between the two families. The husband’s elder brother was already married to the wife’s sister. Both parties admittedly belong to well-to-do families. At the time of marriage between the parties, Darshan Gupta, the husband was 22 years of age, and Radhika Gupta was 19. Now the husband is 35, and the wife 32. The marriage between the parties was duly consummated, and their relationship blossomed into one full of love and affection.
The cordiality between the parties continued for a period of two years, till
the wife conceived for the first time in February 1999. The afore stated conception was aborted when Radhika Gupta was in the fourth month of her pregnancy, as she had commenced to suffer from hypertension resulting into fits, extreme morning sickness and general weakness. The decision to abort the pregnancy in June, 1999, was based on medical advice.  The wife Radhika Gupta conceived for the second time in February 2000.During the instant pregnancy, she had similar symptoms, as she had suffered on the earlier occasion. For the aforesaid reason, and on medical advice, when the pregnancy was in its eighth month, a caesaran operation was performed in September, 2000. At the time of birth of the child, the wife, Radhika Gupta, was unconscious. Even after the child was delivered, she remained unconscious. The child born to Radhika Gupta survived for only eight days.
Since Radhika Gupta had developed serious medical complications, she was treated at the best hospitals at Hyderabad, amongst others at the Apollo  Hospital, as an indoor patient. Doctors from across the country were consulted. They had attended upon her, at the behest of her husband Darshan Gupta. To ensure that there was no deficiency in her medical upkeep, she was shifted to the Leelavathi Hospital at Mumbai. At Mumbai, further tests were conducted and surgeries were performed. She also sought consultations from the National Institute of Medical Health and Neuroscience, Bangalore (NIMHANS). During the treatment of Radhika Gupta, neurologists and gynecologists looking after her believed, that she had suffered brain damage. On that account, in fields wherein Radhika Gupta needed assistance. He also ensured, that such treatment was provided to her at premium hospitals. Material on record demonstrates, that she was admitted at the Apollo Hospital, Hyderabad, and thereafter, at the Leelavathi Hospital, Mumbai. Her treatment at NIMHANS, Bangalore, also emerges from the record of the case. There can, therefore, be no doubt about the initial commitment of Darshan Gupta towards the welfare of his wife Radhika Gupta.
It, however, seems, that the appellant-husband was skeptical about the outcome of her recovery. His assessment of her medical condition, in the background of the inputs from the doctors attending on her, probably created the impression, that she would henceforth be a liability on him. Dr. M. Veera Raghava Reddy-PW4 may have been responsible for the said impression. Even during the course of his testimony before the Family Court, Dr. M. Veera Raghava Reddy-PW4 had opined, that from his experience he could state, that even if the respondent Radhika Gupta was treated by psychiatrists or clinical physiologists, her improvement would be limited to 4-5%. Keeping in mind the hopeless condition of Radhika Gupta, the appellant-husband could not have expected any kind of positive relationship with Radhika Gupta. It was natural for him to infer, that his wife would henceforth be a useless burden. It is not reasonable to blame him for his impressions. In 2000, when the unfortunate
incident occurred, he was merely 25 years old. One would expect, that all his dreams of a happy married life, came to be shattered after seeing the medical condition of his wife, specially in the background of the assessment made by the experts being consulted. The aforesaid impression in his mind, clearly demonstrates the reason of his responses towards Radhika Gupta, in the aftermath of her medical tragedy. He was absolutely sure, that she would never be able to lead a normal life, and that, there was no question of her being able to perform her matrimonial obligations. It is in the aforesaid background, that it is
easier to understand why he had refrained from extending emotional or moral support to Radhika Gupta. But the inescapable truth is, that factually Darshan Gupta did not extend emotional or moral support to his wife, after her medical episode. The distress of Darshan Gupta, and the distance that he started to keep from his wife, emerge from the statement of Dr. C.R. Mukundan-RW1. Dr.C.R. Mukundan-RW1 placed on the record of the Family Court three documents (Exhibits R1 to R3). The aforesaid documents pertain to the treatment of Radhia Gupta during 2002. In our view, those are the safest documents to be relied upon, for truly assessing the medical conditions of Radhika Gupta. These reports cannot be said to have been created, at the asking of one or the other.
They were honest impressions expressed about the state of mental health of Radhika Gupta. The attending doctor of Radhika Gupta considered it appropriate to expressly record in one of these reports, that during her treatment, he had requested Radhika Gupta to bring her husband along with her. He also noted, that the husband had never accompanied her, despite his aforesaid indication to Radhika Gupta. The consequence of non-participation of Darshan Gupta in the course of treatment of Radhika Gupta, is also recorded in the report.
The report notices, that her improvement would have been a lot more significant and faster, if her husband had been with her and had cared for her in her journey to recovery. The reasons which may have weighed in the young husband’s mind may be any, but the harsh reality is, that Darshan Gupta did not extend due care and support to his wife, nor did he participate in her journey to recovery. Shorn of the participation and support of Darshan Gupta to his wife Radhika Gupta, it is still material to determine the extent of her recovery. An assessment of the mental condition of Radhika Gupta, would render it possible for us to determine whether or not in terms of Section 13(1)(iii) of the Hindu Marriage Act, 1955, her mental disorder is of such a kind, and to such an extent,that Darshan Gupta cannot reasonably be expected to live with her. Insofar as the instant aspect of the matter is concerned, it would be just and appropriate to refer to and rely upon, the three reports prepared at the relevant time. The aforesaid reports were placed on the record of the Family Court by Dr. C.R.Mukundan-RW1. The said reports were prepared in June, July and October2002. The reports reveal, that Radhika Gupta had undergone intensive cognitive re-training using brain function therapy, and she was provided with graded re-training in alphabet and number recognition and delayed recall, recognition and  recall of words and figures, different levels of working memory, etc. In the firstneuro-psychological assessment of Radhika Gupta at NIMHANS in June, 2002,as also, in the second assessment made in July, 2002, considerableimprovement was found in the medical condition of Radhika Gupta. She was found to have shown significant progress in all cognitive areas, and that, her word finding difficulty was reduced by 60-70%. Even though the report records, that she could not spontaneously name household articles and food materials, or recall the names of persons and objects seen in movies or read in books, yet was noticed, that she could do so with some effort. The report also records, that her working memory had improved to an extent, that the same could be described as “near normal”. In her aforesaid assessment, she was found to be able to execute and complete, working memory tasks. Radhika Gupta was subjected to a third neuro-psychological assessment in October, 2002. Again marked improvement was found in her conceptual organization of numbers and ability for arithmetic operations. The instant third assessment expressly records, that Radhika Gupta was capable of all normal emotional experiences and expressions. Her eager and earnest desire about her future reunion with her husband, is also indicated in the report. She has been assessed as fully capable of shouldering the responsibilities of a happy marital life. Dr. C.R. Mukundan- RW1 categorically testified, that Radhika Gupta was not a case of mental disorder. He clarified, that her case was of cognitive deficiency, on account of brain damage. According to RW1, Radhika Gupta had recovered her working memory by more than 80%. He also explained, that cognitive deficiency is recoverable, but the recovery is dependent on the degree of damage to the brain, as also, the emotional support the patient gets from the family members, at the relevant time. It would be pertinent to mention, that this is the testimony of the same doctor, who had been requiring Radhika Gupta to bring Darshan Gupta along with her, during the course of her consultations. During the course of his cross-examination, Dr. C.R. Mukunan-RW1 denied the suggestion, that Radhika Gupta was not in a position to discharge her normal day to day functions of life.Besides the testimony of Dr. C.R. Mukundan-RW1, it would be relevant to mention, that the Family Court had directed Radhika Gupta to appear before a medical board. It would be appropriate to refer to the findings and conclusions
recorded in the report submitted by the said medical board, which comprised of eminent specialists in psychiatry and clinical psychology. In the aforesaid report (Exhibit C1) submitted to the Family Court, conclusions were recorded on the basis of the medical history of Radhika Gupta, as also, the observations and examinations of the respondent-wife. The medical board expressed the opinion, that Radhika Gupta was suffering from cognitive deficiencies in the form of difficulty in comprehension, attention, concentration, orientation, perceptual ability, memory retrieval, word finding difficulty and organization ability. The said effects, according to the Board, could influence her day to day functioning. It was however concluded, that Radhika Gupta did not manifest any signs of major mental disorder, and that, she exhibited normal adequate emotional responses. It was also opined, that she would further benefit from neuro-psychological rehabilitation measures, which are available at NIMHANS. Dr. Bhaskar Naidu, one of the members of the medical board, was also examined by the Family Court, as a court witness. During the course of his deposition, Dr. Bhaskara Naidu-CW2, expressed the opinion that Radhika Gupta could be described as a person of moderate intelligence. He also expressed, that by undergoing therapy training, there was a further likelihood of improving her cognitive deficiencies. He also clarified, that the deficiencies suffered by Radhika Gupta, would not come in her way to discharge her matrimonial obligations. The aforesaid material, in our considered view, would be sufficient in recording our conclusions, in respect of the mental health of Radhika Gupta.Based on the evidence discussed hereinabove, it is not possible for us to record,that Radhika Gupta suffers from any incurable unsoundness of mind. It is also not possible for us to hold, that she suffers from such mental disorder, that it cannot be reasonably expected of her husband to live with her. The evidence produced before the Family Court leaves no room for us but to conclude, that Radhika Gupta merely suffers from mild to moderate cognitive deficiencies. She is categorized by medical experts as an individual of moderate intelligence.Material on the record of the case reveals, that she would further benefit from neuro-psychological rehabilitation measures, which are available at NIMHANS.
Even though the said deficiencies could influence her day to day functioning, but expert opinion is unanimous that the same would not come in her way to discharge her matrimonial obligations. It cannot also be overlooked, that experts have clearly expressed that Radhika Gupta exhibits normal and adequate emotional responses. She has right from the beginning, fervently expressed the desire to restore her relationship with her husband, and to live a normal life, in a matrimonial relationship with him. In the aforesaid view of the matter, it is not possible for us to conclude, that the mental condition of Radhika Gupta is such as would persuade us to accept the appeal preferred by Darshan Gupta under Section 13(1)(iii) of the Hindu Marriage Act, 1955.It would also be relevant for us to refer to the alleged erratic behaviour of Radhika Gupta. In this behalf, it would be pertinent to mention, that it was pointedly asserted at the behest of the appellant-husband, that Radhika Gupta would wake up in the middle of the night, and thereafter, would not allow him to sleep. It was also contended, that Radhika Gupta would shout and scream without any provocation or cause, at any time of the day (or night). Other similar allegations were also levelled by Darshan Gupta against his wife. The Family Court, while dealing with the said allegations, had rejected the same on the ground, that there was no evidence before the Court, except the deposition of interested witnesses, namely, the appellant-husband himself, his maternal aunt Nirmala Devi and his elder twin brother Drapan Gupta. Since the husband did not produce independent witnesses available to him before the Family Court, itwas concluded that the husband had failed to establish, that Radhika Gupta’sbehaviour was aggressive, erratic or abnormal; or that he was subject to crueltyon account of such behaviour. We are of the considered view, that the FamilyCourt, as also, the High Court were fully justified in drawing their conclusions,insofar as the alleged abnormal, erratic and aggressive behaviour of Radhika Gupta is concerned. The courts below were fully justified in recording, that the said behaviour of Radhika Gupta could have easily been established through the testimony of the attendants who looked after Radhika Gupta, as also, the other staff, yet the said witnesses were not produced by the appellant, despite their availability. Interestingly, however, the appellant-husband himself had produced Dr. M. Veera Raghava Reddy-PW4, to support his cause. Dr. M. Veera Raghava Reddy-PW4 appearing for the appellant-husband, during his deposition asserted that he did not observe any signs of aggressiveness in the respondent-wife.
Since Radhika Gupta was under the care and treatment of Dr. M. Veera Raghava Reddy-PW4, he would have obviously known of her erratic behaviour, if the allegations of the husband were correct. The respondent-wife had alsoproduced Dr. C.R. Mukundan-RW1 on her behalf. He too would have been aware of such behaviour. The appellant Darshan Gupta, however, chose not toexamine Dr. C.R. Mukundan-RW1, on the said subject. In fact, there is materialon the record of the case to draw a finding, converse to the submissionadvanced. In this behalf, it would be pertinent to mention, that in the order of the Family Court it is duly noted, that when Dr. M. Veera Raghawa Reddy-PW4,appeared to depose in the matter, Radhika Gupta was sitting in the court-hallobserving court proceedings. During his interaction with Radhika Gupta, PW4had enquired about her welfare, and she had responded by stating “I am fine sir,thank you”. The very court which Radhika Gupta had repeatedly visited,recorded the above instance to demonstrate that her behavior was far from rerratic, as suggested by the husband. The position, in our view, would be no different, even if we consider these facts in onjunction with her medical condition. We are, therefore, satisfied in accepting the conclusion drawn concurrently by the courts below, that there was no material on the record of the case, to substantiate the alleged aggressive, erratic or abnormal behaviour of Radhika Gupta. In the aforesaid view of the matter, it is not possible to accept the appeal preferred by the appellant even under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

Despite our aforesaid conclusions, it is necessary to examine the instant controversy from another point of view. As noticed hereinabove, it was the vehement contention of the learned counsel for the respondent-wife, based on the pleadings filed by Radhika Gupta, as also, the evidence produced by her,that it was the husband Darshan Gupta alone, who was blameworthy of the medical condition of the respondent. It was submitted, that Darshan Gupta desires to encash on his own fault, by seeking dissolution of marriage, for a consequence, of which he himself was blameworthy. The instant submission, though not canvassed in that manner, can be based on a legal premise. A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal, that the same are grounds based on the ‘fault’ of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the ‘matrimonial offence theory’ or the ‘fault theory’. Under this jurisprudential principle, it is only on the ground of an opponent’s fault, that a party may approach a Court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the “matrimonial offence theory” / the “fault theory” must be innocent. A party suffering “guilt” or “fault” disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage.But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party, and not fault of the party which has approached the Court. Therefore, if a husband’s act of cruelty, compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage, on the ground of desertion. The reason being, that it is the husband himself who was at fault, and not the wife. This is exactly what the respondent has contended. Her claim is, that in actuality the appellant is making out a claim for a decree of divorce, on the basis of allegations for which he himself is singularly responsible. On the said allegations, it is Darshan Gupta, who deserves to be castigated. Therefore, he cannot be allowed to raise an accusing finger at the respondent on the basis of the said allegations, or to seek dissolution of marriage, thereon. There is no dispute between the rival parties, that after Radhika Gupta’s first conception was aborted in June, 1999, the attending gynecologist at Apollo Hospital, had cautioned the couple against any further conception for at least two years. The couple had been advised, that pregnancy of Radhika Gupta during this period could lead to serious medical complications. Radhika Gupta alleges,that her husband had proceeded with unsafe cohabitation, leading to her second pregnancy, within a short period of eight months (after the abortion in June, 1999), i.e. well within the risk period. Clearly contrary to the medical advisory. The truth of the second conception, cannot be disputed, in view of the overwhelming supporting evidence on the record of the case. The conception
could have only occurred because of, unprotected sexual indulgence by Darshan Gupta. The medical condition of Radhika Gupta, was for one and only one reason, namely, the second conception of Radhika Gupta, during the unsafe period. Clearly, the blame thereof, rests squarely on the shoulders of Darshan Gupta.
The instant conclusion is difficult to assimilate. Yet, there can be no doubt about the truthfulness thereof. It is in this view of the matter, that the submissions advanced at the hands of the learned counsel for Darshan Gupta, have been vehemently opposed. The unambiguous contention of the learned counsel for the respondent is, that the grounds/facts on which divorce is sought by the appellant, are not at all available to him under the “fault theory” on which Section 13(1) of the Hindu Marriage Act, 1955, is founded. We are persuaded to accept the submission noticed in the foregoing paragraph. There can be no doubt, that all the grounds/facts on which divorce has been sought, emerge from the medical condition of Radhika Gupta, after her cesarean operation in September, 2000. The symptoms during her first pregnancy were such, that the couple was advised not to conceive for a period of two years. The husband did not heed to the advice tendered by the attending gynecologist. We are, therefore, inclined to fully endorse the view expressed by the Family Court, that the appellant-husband Darshan Gupta himself, was responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as he didnot heed the advice of gynecologist after the abortion of her first pregnancy in June 1999. There is no serious dispute, that to satisfy his desires, he impregnated his wife within a period of eight months, i.e., well within the riskperiod. Therefore, she suffered the predicted consequences. The medicalcondition of Radhika Gupta, on which the appellant basis his claim for divorce, isof his own doing. Even though at that juncture, Darshan Gupta was merely 25 years of age, and it may well be difficult to blame him, yet there is no escape from the fact, that the fault rests on his shoulders. In the above view of the matter, it is not possible for us to conclude, that Darshan Gupta did not suffer from any “guilt” or “fault” in the matter. It is, accordingly, not ossible for us to accept, that he can be permitted to use his own fault to his advantage. His prayer for divorce on the facts alleged, is just not acceptable. The party seeking divorce has to be innocent of blame. We are satisfied, that the grounds/facts on which a claim for divorce can be maintained under Section 13(1) of the Hindu Marriage Act, 1955, are clearly not available to the appellant Darshan Gupta in the facts and circumstances of this case. For the instant reason also, the prayers made by the appellant must fail. Towards the same end, learned counsel for the appellant advanced yet another submission. Learned counsel representing the appellant, sought dissolution of marriage on the ground, that the matrimonial ties between the parties had irretrievably broken down. It was, therefore, the contention of the learned counsel for the appellant, that this Court would be justified in annulling the marriage between the parties, specially when the parties have lived apart for more than 12 years. Inviting this Court’s attention to the intervention at the instance of this Court, in compliance whereof the parties had made a last ditch effort to live together, and had actually taken up residence in an independent flat in Hyderabad on 29.9.2011, it was pointed out, that they could not persuade themselves into a relationship of cordiality. It was, therefore, sought to be suggested, that there was no likelihood of the parties ever living together as husband and wife. It was accordingly submitted, that this Court should consider the annulment of the matrimonial ties between the parties, on the ground of irretrievable breakdown of marriage.

At the present juncture, it is questionable as to whether the relief sought by the learned counsel for the appellant, on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so, is based on a judgment rendered by this Court in Vishnu Dutt Sharma vs. Manju Sharma,(2009) 6 SCC 379, wherein this Court has held as under:-
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.Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above,and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.  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. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce.” In this behalf, it would also be relevant to refer to another judgment rendered by this Court in Gurbax Singh vs. Harminder Kaur, (2010) 14 SCC 301. Paragraph 20 of the cited judgment is relevant to the issue, and is accordingly being extracted hereunder:-
Finally, a feeble argument was made that both the appellant and respondent were living separately from 2002 and it would be impossible for their reunion, hence this Court exercising its jurisdiction under Article 142 of the Constitution, their marriage may be dissolved in the interest of bothparties. Though, on a rare occasion, this Court has granted the extraordinary relief dehors to the grounds mentioned in Section 13in view of the fact that the issue has been referred to a larger Bench about permissibility of such course at present, we are not inclined to accede tothe request of the appellant. If there is any change of law or additional ground included in Section 13by the act of Parliament, the appellant isfree to avail the same at the appropriate time.”
Even otherwise, in the facts and circumstances of this case (which are beinghighlighted while dealing with the appellant’s next contention), we cannot persuade ourselves to grant a decree of divorce, on the ground of irretrievable breakdown of marriage, for the simple reason that the breakdown is only from theside of the husband. The wife - Radhika Gupta has consistently maintained, thatshe was intensely concerned with her future relationship with her husband, andthat, her greatest and paramount desire was to rejoin her husband, and to livewith him normally in a matrimonial relationship, once again. Since in the presentcase, the respondent does not consent to the severance of matrimonial ties, itmay not be possible for us to accede to the instant prayer, made at the hands of the learned counsel for the appellant.
Since we were not agreeable with the contention advanced by the learnedcounsel for the appellant, on the plea of irretrievable breakdown of marriage,learned counsel sought the same relief, for the same reasons, by imploring us toinvoke our jurisdiction under Article 142 of the Constitution of India, and to annul the marriage between the parties, as a matter of doing complete justice betweenthe parties. Doing justice between the parties is clearly a constitutional obligation. This Court has been bestowed with the discretion “... to make such order as is necessary for doing complete justice in any cause or matter pending before it...”. The concept of justice, however, varies depending on the interest of the party. On most occasions, it is advisable to adjudicate matters in consonance with law. Whenever it is possible to do so, on the touchstone of the courts conscience, the determination rendered would simultaneously result in doing justice between the parties. All the same, since we have been called upon to annul the marriage between Darshan Gupta and his wife Radhika Gupta in order to do complete justice to the parties, we have ventured to thoughtfully examine the matter from instant perspective as well.
In the context of doing justice it was suggested, that the appellant would be ready and willing to pay the respondent, whatever was considered appropriate by this Court. We are informed, that the appellant is financially well-to-do. We shall, therefore, keep in our mind the appellant’s offer while examining the instant issue. We would, in our endeavour to determine the issue in hand, examine the matter, by reversing the roles of the parties. We will examine the matter as if, the wife had approached  husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to “near normal” after treatment. And his mental condition was such, that it would not have any effect on his matrimonial obligations. And the wife’s family is agreeable to pay an amount to be determined by this Court (just as the husband-Darshan Gupta, has offered), so as to enable their daughter to break away, and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves, whether the husband would have accepted such a plea, in the facts denoted above? In such situation, if this Court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind, that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just, the dissolution of his matrimonialties, even if the couple had been separated for a duration, as is the case in hand.Specially, if the husband had, right from the beginning, fervently expressed the desire to restore his matrimonial relationship with his wife, and to live a normal life with her.

We are of the view, that the issue in hand should be adjudged by the above standards, when the same prayer is made by the husband. To constitute justice, the picture should appear to be the same, irrespective of the angle from which it is viewed. If the same sequence of facts cannot be viewed as doing justice to the husband, they have to be likewise viewed for the wife as well. It is, therefore, not possible for us to accept even the last plea advanced at the hands of the learned counsel for the appellant.

For the reasons recorded hereinabove, we find no merit in these appeals, and the same are accordingly dismissed.
J.(P. Sathasivam)
J.(Jagdish Singh Khehar)

New Delhi;

July 1, 2013.


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