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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7223-7224 OF 2015 (Arising out of SLP (C) Nos.31056-31057 of 2012)

C.SEMBIAM SIVAKUMAR                                 APPELLANT                                 VERSUS V.SIVACHITRA DEVI                                  RESPONDENT

J U D G M E N T KURIAN JOSEPH, J.

1. Leave granted.  2. The appellant has come up in appeal by special leave, aggrieved  by  the  judgment  dated  19.06.2012  in  Civil Miscellaneous Appeal No.220/2003 on the file of the High Court of Judicature at Madras. The High Court set aside the decree of  divorce  granted  by  order  dated  19.11.2002  in  F.C.O.P. No.1569/1998 of the Family Court, Madras. The said order was passed  by  the  Family  Court  in  a  petition  filed  by  the appellant  for  dissolution  of  marriage  on  the  ground  of cruelty, under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955. According to the appellant, the marriage was solemnized on  13.11.1997  as  per  customary  rites.  It  was  an  arranged marriage. It is the case of the husband that the marriage was never  consummated  and  the  respondent  was  not  interested  in marital life. It is alleged that respondent left the company

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of  the  appellant  on  27.01.1998;  however,  according  to  the respondent,  she  left  appellant's  company  on  10.03.1998. Though, the petition for dissolution was filed in 1998 it was disposed of by the Family Court only in the year 2002. Having regard to the evidence available on record, the Family Court was of the view that the appellant was entitled to the decree of divorce on the ground of cruelty.  3. In  appeal,  the  High  Court,  however,  came  to  the conclusion  that  the  evidence  available  on  record  was  not sufficient to establish cruelty so as to grant a decree of divorce and hence the order of decree of divorce granted by the Family Court was set aside. When the matter came up before this  Court  on  30.10.2012,  this  Court  passed  the  following order:-

“Learned  counsel  for  the   petitioner submitted  that  after passing of the decree of divorce by the trial  Court  his  client  had remarried and it  will  cause  him  immense injury  if the  impugned judgment of the High Court is not set aside. He also pointed out that during the  pendency  of  the  matter before  the High  Court, the respondent had agreed to accept permanent alimony of rupees four lacs.  In reply to the Court's query,  learned counsel  submitted  that  his  client  is  still ready   and  willing  to  pay  the   amount  of permanent alimony with little enhancement.

Issue  notice  to  the  respondent, returnable  in  the  first week of February, 2013.  Dasti, in addition, is permitted.      Issue notice on the petitioner's prayer for  interim  relief,  returnable  in  the  first week of February, 2013. Dasti,  in  addition, is permitted.      In  the  meanwhile,  operation  of  the impugned judgment  shall remain stayed subject to  the  condition  that  within   eight   weeks from      today the petitioner shall pay to the

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respondent a sum of rupees  five lacs. If the needful is not done, the interim order passed today shall      stand automatically vacated and  the  special  leave  petition  shall  stand dismissed.     The Registry shall issue  notice  to  the respondent only after the petitioner produces evidence showing payment of rupees  five lacs to her.”

4. On 26.09.2014, the matter again came up and Court passed a further order which reads as under:-

“Learned  counsel  for  the  petitioner submits that a sum of Rs.5 Lacs has been paid in favour of the respondent (wife).  On joint request of the learned counsel for the parties, we refer the matter to the Co-ordinator, Supreme Court Mediation Centre at 110,  Lawyers'  Chambers  (R.K.  Jain  Block), Supreme  Court  Compound,  Tilak  Marg,  New Delhi-110001. The parties to appear before the Mediator on 16th October, 2014 at 11.00 A.M. Let the Mediator examine all the option to resolve the dispute amicably.  Report may be submitted within six weeks from the date of appearance.   Post the matter after ten weeks.   In the meantime, petitioner shall pay a sum  of  Rs.30,000/-  in  favour  of  the respondent(wife) towards her to and fro journey and stay at Delhi.”  

5. It is informed by learned counsel for the appellant that proceedings before the Mediator did not take place since it was informed by the respondent that she was not willing for any mediation.  6. Thereafter,  on  16.01.2015,  this  Court  passed  the following order:-

“Learned counsel for the petitioner and respondent  are  directed  to  find  out  whether there is a possibility between the parties to settle the dispute.   We direct respondent - Ms. V.Sivachitra

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Devi and petitioner - Mr. C. Sembiam Sivakumar to appear before this Court on 10th February, 2015 at 1.30p.m. in Chambers.   List the matter on 10th February, 2015 at 1.30p.m. in Chambers.”

7. It appears that the respondent was not willing for that course  of  action  either.  On  17.02.2015,  this  Court  hence passed the following order:-

“Pursuant  to  the  court  order  dated 16.01.2015  the  petitioner-Mr.  C.  Sembiam Sivakumar  is  present.  Respondent-Mrs.  V. Sivachitra Devi is not present.   Mr. Sureshan P, Advocate-on-Record for respondent-Mrs. V. Sivachitra Devi has filed an application  seeking  leave  of  this  Court  to discharge himself from the matter since he did not receive any instructions from his client being  respondent.  The  prayer  made  in  the application is allowed.    Further, as we find that the respondent is  not  interested  to  settle  the  dispute amicably, we re-call the order dated 16.01.2015 and  direct  to  list  the  case  before  an appropriate Bench on 24.03.2015.”

8. After  discharge  of  the  Advocate-on-record,  notice  was sent  to  the  respondent  and  yet  she  did  not  appear  on 02.07.2015. However, the Court was inclined to grant one more opportunity and the case was adjourned. When the matter is taken  up  today,  neither  the  respondent  is  present  nor  any representation is there on her behalf.  9. Having regard to the background of the litigation before this Court, it is fairly clear that the respondent is not interested  to  prosecute  the  matter  any  further,  perhaps, because  she  has  already  received  Rs.5  lakhs  by  way  of permanent alimony pursuant to the order passed by this Court and as recorded in the order dated 26.09.2014. It is seen from

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the record that there was an earlier attempt when the matter was pending before the High Court, to have the matter settled on payment of permanent alimony to the tune of Rs.4 lakhs. Be that  as  it  may.  Now  that,  that  the  appellant  is  since remarried for more than a decade back, pursuant to the decree of  divorce  granted  by  the  Family  Court  and  since  the respondent has accepted the amount of Rs.5 lakhs offered by the appellant/husband towards permanent alimony and since the appellant  submits  that  he  does  not  want  to  prosecute  any litigation for recovery of gold jewellery and other articles worth more than Rs.5 lakhs, we do not think that there is any fruitful  purpose  in  keeping  this  matter  pending.  For  all practical purposes, there is no matrimonial bond between the parties. On scanning the evidence, in the light of the conduct of the respondent, we are satisfied that ground of cruelty has been made out. In that view of the matter, we set aside the impugned order passed by the High Court and restore decree of divorce granted by the Family Court. The appeals are allowed. No costs.  

      …...............J. (KURIAN JOSEPH)

NEW DELHI      …...............J. SEPTEMBER 15, 2015      (AMITAVA ROY)