ROMESH CHANDERversusSMT. SAVITRI

A                             ROMESH CHANDER
                                      v.
                                SMT. SA VITRI

                               JANUARY 13, 1995

B                 [R.M. SAHAI AND S.B. MAJMUDAR, JJ.)

           Personal Law-Marriage dead-Emotionally and practically-Marriage
    dissolved, subject to the appellant transferring the house in the name of the
    respondent.                                                                     +-·
C         Constitution of India-Article 142-Marriage dead, emotionally and
    practically-Dissolved-Direction to trans[er house.

          Appellant is a sanitary inspector married to respondent who is a
    teacher. Their child was born in 1968. By an earlier order dated April 23,
    1980, this Court found the question of desertion against the appellant. The
    present appeal arises out of a petition based on cruelty. The respondent has
D   cast serious aspersions on the character of the appellant, namely mixing
    with undesirable girls in the presence of respondent. However, the same
    could not be established by evidence.                       ·
          Disposing of the appeal, this Court

E          HELD : Marriage is dead both emotionally and practically. Con-
    tinuance of marital alliance for name sake is prolonging the agony and              ..
    affiiction of the parties. Marriage stands dissolved subject to the appellant
    transferring the house in the name of the respondent within a period of 4
    months. The dissolution is to come into effect from the date the house is
    transferred and possession handed over to the respondent. [213-D, F-G]
F         V. Bhagat v. D. Bhagat (Mrs.), [1994) 1 SCC 337 and Chanderkala
    Trivedi (Smt.) v. Dr. S.P. Trivedi, [1993) 4 SCC 232, relied on.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 714of1995.

          From the Judgment and Order dated the 9th March, 1994 of the High
G Court of Punjab and Haryana at Chandigarh in L.P.A. No. 179/86.
          Baldev Atreya and Praveen Jain for the Appellants.

          D.V. Sehghal, Annant V. Palli, Atul Sharma and Mrs. Rekha Palli for       ~
    the respondents.

H         The Judgment of the Court was delivered by
                                         212
             ROMESH CHANDER v. SAVITRI (R.M. SAHAI, J.]                        213

        R.M. SAHAI, J. Should a marriage which is otherwise dead emotion-            A
 ally and practically be continued for name-sake is the issue for consideration
 in this appeal.
       Twenty five years have elapsed since the appellant, a sanitary inspec-
tor, and the respondent, his wife-a teacher have enjoyed the company of each
other as husband and wife. Within these 25 years this is the second round of         B
litigation which routing through the Trial Court and the High Court has
reached this Court. T,he earlier one founded on desertion was decided by this
Court against the husband on 23rd April 1980. This appeal is based on cruel-
ty. Both the courts below have found that even though the wife had cast
serious aspersions on the character of the appellant in the written statement
filed by her earlier and alleged that he was in the habit of mixing with un-         C
desirable girls in the presence of respondent yet since neither any evidence
was led nor it was proved consequently it could not be made basis for claim-
ing divorce on cruelty.

       In V. Bhagat v. D. Bhagat (Mrs.), [1994] 1 SCC 337 this Court has ex-
plained the concept of cruelty both mental and physical which could entitle D
an applicant to claim divorce under Section 13(1)(i-a) of the Hindu Marriage
Act, 1955. In Chanderkala Trivedi (Smt.) v. Dr. S.P. Trivedi, [1993} 4 SCC 232
it was held that if a marriage was dead and there was no chance of its being
retrieved it was better to bring it to an end. In this case the marriage is dead
both einotionally and practically. Continuance of marital alliance for name-
sake is prolonging the agony and affliction. It cannot be disputed that the
husband has not been dutiful and conscious of his responsibilities either E
towards his wife or his son. He did not contribute anything towards upbring-
ing of the child. Yet the marriage being dead, the continuance of it would be
cruelty, specially when the child born out of the wedlock of the appellant and
the respondent as far back.as 1%8 having now grown and being in service.
The appellant has expressed remorse for his conduct and is willing to com-
pensate for his past mistakes by transferring the only house in his name in
                                                                                 F
favour of his wife.

         Considering the facts and circumstances of this case we, in exercise of
  power under Article 142 of the Constitution of India, direct that the marriage
  between appellant and the respondent shall stand dissolved subject to the
  appellant transferring the house in the name of his wife. The house shall be       G
  transferred within four months from today. The dissolution shall come into
  effect from the date the house is transferred and possession is handed over
· to the respondent.

       The appeal is disposed of accordingly. Parties shall bear their own costs.

A.G;                                                        Appeal disposed of.