NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL   No. 7186  of   2016

SUKHENDU DAS      .... Appellant

Versus

RITA MUKHERJEE      .... Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

1. The Appellant  and the Respondent  are  District  Judges

working  in  the  State  of  West  Bengal.   Their  marriage was

performed on 19th June, 1992 as per the Special Marriage Act,

1954 (hereinafter referred to as “the Act”).  A girl child was

born  out  of  the  wedlock  on  14th April,  1993.   There  was

matrimonial  discord  between  the  Appellant  and  the

Respondent and they were living separately since the year

2000.  The Appellant filed an application under Section 27 of

the Act seeking a divorce.  

2. The Appellant alleged that the differences arose because

of the improper behavior of the Respondent in not showing

due respect to his ailing father.  It was further alleged that the 1

Respondent deserted him and refused to give the custody of

the  child  to  him.   The  Appellant  further  averred  in  the

application that the Respondent did not visit him even when

he was  seriously  ill.   The  Respondent  is  accused  of  using

intemperate  language  and  threatening  the  Appellant  with

filing of criminal cases if he perused the petition for divorce

which he proposed in the year 2005.   

3. The Respondent filed a written statement denying the

allegations made in the application filed by the applicant for

divorce.  She refuted all the averments in the application and

sought  for  dismissal  of  the  application  for  divorce.   The

Respondent did not participate in the proceedings before the

trial court after filing the written statement.  The Chief Judge,

City Civil Court, Calcutta by the judgment dated 6th August,

2009 dismissed the application for divorce.  The Appeal filed

against the said judgment was dismissed by the High Court of

Calcutta on 4th April, 2012.  The Respondent did not seek to

appear before the High Court also.  The correctness of the

judgment of the High Court is assailed in the above Appeal.   

4. After  referring  to  the  pleadings  in  the  case,  the  trial

court found that the Appellant failed to prove cruelty on the

2

part  of  the  Respondent.   The  evidence  adduced  by  the

Appellant  was  scrutinized  by  the  trial  court  to  come  to  a

conclusion that  the Appellant  did not  make out  a case for

divorce.   The High  Court,  taking  note  of  the  fact  that  the

Appellant and the Respondent are judicial officers, made an

attempt  for  conciliation  between  the  parties.   However,  in

spite of the effort of the High Court, both the Appellant and

the Respondent  did  not  appear  personally  before  the High

Court.   Despite taking note of the fact that the Appellant and

the Respondent were living separately since the year 2000,

the  High  Court  dismissed  the  Appeal  by  holding  that

irretrievable breakdown of marriage cannot be a ground for

divorce.   The High  Court  held  that  the  Appellant  failed  to

prove mental cruelty on the part of the Respondent.   

5. Notice  was  issued  to  the  Respondent  on  8th October,

2012 to explore the possibility of an amicable resolution to

the matrimonial dispute.  The parties were directed to appear

before  the Mediation  Centre  of  the  Supreme Court  on 21st

November, 2012.  The Respondent did not appear before the

Mediation Centre in spite of service of the Notice.  She chose

not to appear before this Court.  Fresh Notice was ordered on

3

17th August, 2015 but the Respondent did not appear in spite

of receipt of Notice again.   

6. Mr. Raja Chatterjee, learned counsel appearing for the

Appellant  submitted  that  the  Respondent  deserted  the

Appellant about 17 years back and she refused to come back

and live with him.  Apart from the allegation of desertion, the

learned counsel also alleged mental cruelty on the part of the

Respondent who threatened the Appellant in the year 2005

that she would get a criminal case filed against him if he did

not stop attempts to get the divorce.  The learned counsel

further  submitted  that  the  Appellant  and  the  Respondent

have been living apart due to matrimonial discord since 17

years and for all practical purposes the marriage has broken

down.   

7. The  Respondent,  who  did  not  appear  before  the  trial

court after filing of written statement, did not respond to the

request made by the High Court for personal appearance.  In

spite of service of Notice, the Respondent did not show any

interest  to  appear  in  this  Court  also.   This  conduct  of  the

Respondent by itself would indicate that she is not interested

in  living  with  the  Appellant.  Refusal  to  participate  in

4

proceeding for divorce and forcing the appellant to stay in a

dead marriage would itself constitute mental cruelty [Samar

Ghosh v. Jaya Ghosh1].  The High Court observed that no

attempt was made by either of the parties to be posted at the

same place.  Without entering into the disputed facts of the

case, we are of the opinion that there is no likelihood of the

Appellant  and  the  Respondent  living  together  and  for  all

practical purposes there is an irretrievable breakdown of the

marriage.

8. This  court  in  a  series  of  judgments  has  exercised  its

inherent  powers  under  Article  142  of  the  Constitution  for

dissolution  of  a  marriage  where  the  Court  finds  that  the

marriage  is  totally  unworkable,  emotionally  dead,  beyond

salvage and has broken down irretrievably, even if the facts

of  the  case  do  not  provide  a  ground in  law on  which  the

divorce  could  be granted [Manish Goel v.  Rohini  Goel2].

Admittedly,  the  Appellant  and  the  Respondent  have  been

living separately for  more than 17 years and it  will  not be

possible  for  the  parties  to  live  together  and  there  is  no

purpose  in  compelling  the  parties  to  live  together  in

1  (2007) 4 SCC 511 [para101 (xiv)] 2  (2010) 4 SCC 393 [para 11]

5

matrimony  [Rishikesh  Sharma v. Saroj  Sharma3].   The

daughter of the Appellant and the Respondent is aged about

24 years and her custody is not in issue before us.  In the

peculiar facts of this case and in order to do complete justice

between the parties, we allow the Appeal in exercise of our

power under Article 142 of the Constitution of India, 1950.   

9. For the aforementioned reasons, the Appeal is allowed

and the application for divorce filed by the Appellant under

Section 27 of the Act is allowed.          

                                                  .................................J.                                          [S.A. BOBDE]

.................................J.                                    [L. NAGESWARA RAO]

NEW DELHI;  OCTOBER 09,   2017.   

3  (2007) 2 SCC 263 [para 4 and 5]

6