Holding

When a marriage is irretrievably broken and the parties have settled all disputes, the Supreme Court may, under Article 142, dissolve the marriage by decree of divorce by mutual consent and dispose of all pending proceedings.

Summary

Sanghamitra Ghosh filed a transfer petition seeking to move a matrimonial suit for restitution of conjugal rights to Bangalore, alleging physical and mental torture by her husband Kajal Kumar Ghosh and his parents, and claiming she was driven out of the marital home with their minor child. Both parties later entered into a written settlement, wherein the husband agreed to pay Rs.10 lakh, the wife obtained permanent custody of the child, and all pending criminal, civil, and family law cases between them were to be withdrawn. The Supreme Court examined whether, under the extraordinary jurisdiction of Article 142 of the Constitution, it could dissolve a marriage that was irretrievably broken and grant a decree of divorce by mutual consent despite procedural gaps under Section 13‑B of the Hindu Marriage Act. Relying on precedents such as Harpit Singh Anand and Kanchan Devi, the Court held that the marriage was defunct de facto and could be declared defunct de jure. Consequently, the Court exercised its Article 142 powers to grant a decree of divorce by mutual consent, directed the disposal of all pending proceedings, and ordered the parties to adhere to the terms of their compromise.

Issues considered

The Court's authority under Article 142 of the Constitution to dissolve a marriage by mutual consent in matrimonial matters.
Whether the marriage between the parties is irretrievably broken warranting dissolution.
The propriety of disposing of all pending criminal, civil, and family law cases between the parties through a settlement.
The appropriateness of transferring the matrimonial suit under Section 25 of the CPC given the parties' relocation.

Legislation cited

Subjects

irretrievable breakdowndivorce by mutual consentArticle 142transfer petitionHindu Marriage Actrestoration of conjugal rightssettlementpending litigationcustodymaintenancedowry harassment

Judgment

A SANGHAMITRA GHOSH
v.
KAJAL KUMAR GHOSH

NOVEMBER 20, 2006

B [G.P. MA THUR AND DAL VEER BHANDARI, JJ.]

Hindu law:

Hindu Marriage Act, 1955; Section 9:
c
Wife tortured by her husband and in-laws-She was driven out of her
matrimonial home along with her minor child-Criminal "Complaint-Filing
of a petition by her husband in a District Court for restitution of conjugal
rights-Filing of Transfer Petition by wife and later a joint petition along
D with her husband to grant a decree of divorce setting out terms of
compromise-Held: Marriage has been wrecked beyond the hope ofsalvage-
Under the circumstances, it is appropriate to declare defunct dejure the
marriage as it is defunct in defecto-All the pending cases between the
parties disposed of and a quietus is put to litigation between the parties in
the interest of the parties and their minor son-Directions .issued.
E
Constitution of India, 1950; Article 142:

Matrimonial matters-Exercise of extra ordinary jurisdiction-Held: Jn
order to do complete justice, Supreme Court could exercise jurisdiction in
matrimonial matters under Article 142 of the Constitution.
F
The marriage of the petitioner was solemnized with the respondent as
per Hindu rites and customs and was duly registered with the Registrar of
Marriage. A male child was born out of the wedlock but, the parties did not
have a smooth marital life. The petitioner alleged that she was physically
and mentally tortured by her husband and his parents, and eventually she was
G driven out of the marital home along with her minor child. Thereafter, the
petitioner moved to her parents and started living with them. The respondent
never cared to inquire about the petitioner and her child and had never sent
any money either for the maintenance of the petitioner or her child. In these
circumstances, she was forced to file a criminal complaint under Section 498A

H 156
SANGHAMITRA GHOSH v. KAJAL KUMAR GHOSH 157
of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act. A
She was totally dependant on her father, who himself was very old and was
suffering from cancer and a considerable amount had to be spent on his
treatment. In these circumstances, in order to maintain herself and her child,
she took up a petty job in a bank on a meagre salary. However, she was
transferred t" Bangalore, as a result of which it had become extremely difficult B
for her to attend the court proceedings in West Bengal. Therefore, the
petitioner filed a transfer petition praying for transfer of the matrimonial
suitJiled by her husband and pending in the court of District Judge, Barasat
to the court of competent jurisdiction at Bangalore. During the pendency of
this petition, the parties, despite persuasion of the Court, have not been able
to sort out their differences and decided to live separately. In the meantime, C
both the parties have prayed that in the peculiar facts and circumstances of
this case, this Court may grant a decree of divorce by mutual consent. In
connection thereof, the parties have jointly filed a petition indicating therein
the Terms of Compromise. The respondent-husband had filed additional
affidavit in which detailed particulars of the matters pending inter se between
the parties have been enumerated. D
Disposing of the petition, the Court

HELD: 1. In order to do complete justice in the matrimonial matters,
this Court has been less hesitant in exercising its extra-ordinary jurisdiction
under Article 142 of the Constitution. In view of peculiar facts and E
circumstances of this case, it is appropriate to exercise the jurisdiction of
this Court under Article 142 of the Constitution. (165-C-D)

Harpit Singh Anand v. State of West Bengal, (2004} 10 SCC 505;
Kanchan Devi v. Promod Kumar Mittan & Anr., [1996) 8 SCC 90 and Ashok F
Hurra v. Rupa Bipin Zaveri etc., [1997} 4 SCC 226, relied on.

2.1. In the instant case, this Court is fully convinced that the marriage
between the parties has irretrievably broken down because of incompatibility
of temperament. Jn fact there has been total disappearance of emotional
substratum in the marriage. The matrimonial bond between the parties is G
beyond repair. A marriage between the parties is only in name. The marriage
has been wrecked beyond the hope of salvage, therefore, the 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. (167-D-E-F\

Swati Verma v. Rajan Verma & Ors., (2004} 1 SCC 123; Madhuri Mehta H
158 SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A v. Meet Verma, [1997] 11 SCC 81; Anita Sabhanva/ v. Anil Sabhanva/, (1997)
11SCC490 and Naveen Kohli v. Nee/u Kohli, (2006) 4 SCC 558, relied on.
2.2. In order to ensure that the parties may live peacefully in future, it
has become imperative that all the cases pending between the parties are
directed to be disposed of. Unless all the pending cases are disposed of and
B a quietus is put to litigation between the parties, it is unlikely that they would
live happily and peacefully in future. This will not only help the parties, but
it would be conducive in the interest of the minor son of the parties.
[167~F-G-H]

2.3. On consideration of the totality of the facts and circumstances of
C the case, the following directions are issued:
(i) The parties are directed to strictly adhere to the Terms of
Compromise filed before this Court and also the orders and directions passed
by this Court; ·

D (ii) The cases pending between the parties are disposed of in view of the
settlement between the parties. (167-H; 168-A-B-C]

CIVIL ORIGINAL JURISDICTION : Transfer Petition (C) No.228of2004.

Petition Under Section 25 of the C.P.C. for transfer of the Matrimonial
E Suit No.437 of2002 titled as Kajal Kumar Ghosh Versus Sanghamitra Ghosh
Pending before the Court of Ld. District Judge, Barasat, West Bengal to the
Court of Competent Jurisdiction at Bangalore.

WITH

p TP (Crl. Nos. l 05 and 171 of 2004, TP (Civil) No. 727 of 2004 and TP
(Civil) No. 168 of2006.

Awanish Sinha, Prem Ranjan Kumar, B.K. Sharma, Himanshu Shekhar,
Vipin Nair and Ms. Kajal Ghosh (for Mis. Temple Law Firm), for the appearing
parties.
G
The Judgment of the Court was delivered by

DALVEER BHANDARI, J. The marriage of the petitioner was solemnized
on 8.11.1999 with the respondent as per Hindu rites and customs and was
duly registered with the Registrar of Marriage. The parties have closely
H known each other before marriage and the marriage was solemnized according
SANGHAMITRAGHOSH v. KAJALKUMAR GHOSH [DAL VEERBHANDARI,J.] 159

to the wishes of the petitioner and the respondent. A

..
A male child was born out of the wedlock but, unfortunately, the parties
did not have a smooth marital life. According to the allegations of the
petitioner, Sanghamitra Ghosh, she was physically and mentally tortured by
the respondent and his parents. According to her, the degree of torture
increased day by day and eventually on 14.1.2001 she was driven out of the B
marital home along with her minor child. Thereafter, the petitioner moved to
Iler parents and started living with them from 15.1.200 I. The respondent never
cared to inquire about the petitioner and her child and has never sent any
money either for the maintenance of the petitioner or her child.

In these circumstances, she was forced to file a criminal complaint on C
4.8.2002 under Section 498A of the Indian Penal Code read with Sections 3
& 4 of Dowry Prohibition Act.

According to the version of the petitioner, she was totally dependant
on her father, who himself was very old and was suffering from cancer and D
a considerable amount had to be spent for his treatment. In these
circumstances, the petitioner became an additional burden on her parents. In
order to maintain herself and her child, she took up a petty job in the ICICI
bank on a meagre salary. The petitioner now has been transferred to Bangalore,
as a result of which it had become extremely difficult for her to attend the
court proceedings in West Bengal. It is very expensive and time consuming. E
· In these circumstances, the petitioner had filed a transfer petition praying that
matrimonial suit no.437 of 2002 titled as "Kaja! Kumar Ghosh versus
Sanghamitra Ghosh" filed by the respondent-husband under Section 9 of the
Hindu Marriage Act, 1955 for restitution of conjugal rights and pending in the
court of District Judge, Barasat be transferred to the court of competent F
jurisdiction at Bangalore.

This Court on 26.3.2004 issued a show-cause notice on the transfer
petition. Reply to the transfer petition was filed by the respondent. The
datewise sequence of events given by the respondent are contrary to what
had been averred by the petitioner. According to the respondent, the G
petitioner was not driven out of the matrimonial home. In fact, she had walked
out of the matrimonial home. The respondent further submitted that their
marriage broke down due to the basic difference in their social status,
educational and cultural background, lack of tolerance and inability to adopt
and adjust to a life of a middle class family.
H
160 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A During the pendency of this petition, the parties have explored the
possibility of an amicable settlement. The matter was adjourned from time to
time to give the parties adequate time to mutually and amicably settle their
differences. The parties, despite persuasion of the Court, have not been able
to sort out their differences and decided to live separately. According to the
B parties, their marriage has been irretrievably broken down and reconciliation
is out of question.

Learned counsel for the parties have prayed that in the peculiar facts
and circumstances of this case, this Court may grant a decree of divorce by
mutual consent. On 15.9.2006, the parties have jointly filed a petition where
C they have spelt out the Terms of Compromise. The Terms of Compromise read
as under:

"l. Shri Kaja! Ghosh/husband agrees to pay a sum of Rs.10 lacs
(Rupees ten lacs) as full and final settlement to his wife Smt.
Sanghamitra Ghosh. This amount shall be paid by Shri Kaja!
D Kumar Ghosh in the Court by way of Demand Draft in favour of
the petitioner.
2. Both the parties further agree to let the mother/Smt. Sanghamitra
Ghosh have the permanent custody of the minor son.
3. However, the Parties further, Kaja! Ghosh will be entitled to have
E visitation rights to the child at the residence of the petitioner at
a mutually convenient date with prior permission.
4. Both the parties also agree to forthwith withdraw/Close all cases
filed against each other and pending before the various courts
in Kolkata and Bangalore. These cases are:
F
(i) Reference Case No.210/2002 pending before the learned SDM
Court, Burrackpore, West Bengal.

(ii) MC No.713/2004 pending before the Principal Family Judge,
Bangalore.
G (iii) Reference Case No.M-313 of2003 pending before the learned
5th· Judicial Magistrate Court, Burrackpore, West Bengal.

(iv) Matrimonial Suit No.437/2002 pending before the District
Judge, Barasat, West Bengal.

H (v) Guardianship Case No.66/2004 pending before the District
.··.
SANGHAMITRA GHOSH v. KAJAL KUMAR GHOSH [DAL VEERBHANDARl,J.] 161

Judge, Barasat, West Bengal. A
5. Both the parties undertake that they shall adhere to the terms of
compromise/settlement and that they shall not litigate in future
and have no claim against each other whatsoever in future."

It may be relevant to mention that on 16.10.2006, respondent Kaja! B
Kumar Ghosh had filed additional affidavit in which detailed particulars of the
matters pending inter se between the parties have been enumerated. On the
same day, the parties had also filed comprehensive terms of their compromise.
The said terms are set out as under:

"Both the parties viz. the petitioner and the respondent have voluntarily C
and with their free will, arrived at a compromise/settlement, which has
been reduced into writing and which reads as under:

I. Shri Kaja! Ghosh/husband agrees to pay a sum of Rs. JO lacs
(Rupees ten lacs) as full and final settlement to his wife, Smt.
Sanghamitra Ghosh. This amount shall be paid by Shri Kajal D
Ghosh in Court by way of the following Demand Drafts drawn
on Allahabad Bank payable in her favour at Bangalore:-
(a) DD No.634519 dated 11.9.2006 for Rs.2,50,000/-
(b) DD No.634520 dated 11.9.2006 for Rs.2,50,000/-.
(c) DD No.634521 dated 1!.9.2006 for Rs.2,50,000/-
E
(d) DD No.634522 dated 11.9.2006 for Rs.2,50,000/-.

2. Both the parties further agree to let the mother/Sanghamitra Ghosh
have the permanent custody of the minor son.

3. However, the father/Kajal Ghosh will be entitled to have visitation F
rights to the child at the residence of his wife at a mutually
convenient date with prior permission.

4. The following cases are pending between the parties before the
various courts. These cases are:
G
(i) REFERENCE CASE N0.21012002 pending before the
Learned SOM Court, Burrackpore, West Bengal filed by the wife/
Sanghamitra under Section 498A IPC read with Sections 3 and 4
of the Dowry Prohibition Act.
TP (CRIMINAL) N0.17112004 which has been filed by the wife H
I ,..
162 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A before this Hon'ble Court arises out of these proceedings.

(ii) MC N0.713/2004 pending before the Principal Family Judge,
Bangalore filed by the wife under Section 13(l)(a) and (b) of the
Hindu Marriage Act for grant of divorce.

TP (CIVIL) N0.72712004 which has been filed by the husband before
B this Hon'ble Court arises out of these proceedings.

(iii) REFERENCE CASE NO. M-3 I 3 OF 2003 pending before the
Learned 5th Judicial Magistrate Court, Burrackpore, West Bengal
filed by wife under Section 125 CrPC for maintenance.

C TP (CRIMINAL) N0.105/2004 which has been filed by the wife
before this Hon'ble Court arises out of these proceedings.

(iv) MATRIMONIAL SUIT N0.437/2002 pending before the District
Judge, Barasat, West Bengal filed by the husband under Section
9 of the Hindu Marriage Act for restitution of conjugal rights.
D
TP (CIVIL) N0.22812004 which has been filed by the husband before
this Court arises out of these proceedings.

(v) GUARDIANSHIP CASE N0.6612004 pending before the District
Judge, Barasat, West Bengal filed by the husband under Section
25 of the Guardians and Wards Act for custody.
E
TP (CIVIL) NO. I 6812006 which has been filed by the wife before this
Court arises out of these proceedings.

5. Both the parties humbly request this Court in exercise of its
powers to do complete justice to the parties, quash/close all the
F above pending proceedings in view of this settlement as the
parties do not intend pursuing the litigation any further.
6. Both the parties humbly request that all the transfer petitions
pending in this Court (as mentioned· earlier in para 4) to be
dismissed as infructuous.
G 7. Both the parties submit that their marriage has broken down
irretrievably and that there is no possibility of the parties living
together. In these circumstances, both parties would humbly
request this Court in exercise of its powers to grant a decree of
divorce by mutual consent.
H
SANGHAMITRA GHOSH 1•. KAJAL KUMAR GHOSH [DAL VEER BHANDARLJ] 163

8. Both the parties undertake that they shall adhere to the tenns of A
compromise/settlement and that they shall not litigate any further
and will have no claim against each other hereafter."

Learned counsel appearing for the parties have prayed that in the
peculiar facts and circumstances and in the interest of justice, this Court, in
exercise of its jurisdiction under Article 142 of the Constitution, may grant a B
decree of divorce by mutual consent.

Learned counsel for the parties have also drawn the attention of this
Court to the decision of Harpit Singh Anand v. State of West Bengal reported
in [2004] IO SCC 505. In this case, in almost similar circumstances, this Court C
in order to put a quietus to all litigations between the parties and not to leave
any room for future litigation and on the request of the said parties, exercising
the power vested under Article 142 of the Constitution, dissolved the marriage
and granted a decree of divorce by mutual consent.

In the case of Kanchan Devi v. Promod Kumar Mittan & Anr reported D
in [1996] 8 sec 90, where the marriage of the parties was irretrievably broken
down, this Court exercised the power under Article 142 of the Constituti9n
of India and passed the following order:

"6. In view of the peculiar facts and circumstances of the case and
being satisfied that the marriage between the appellant and the E
respondent has irretrievably broken down and that there is no
possibility of reconciliation, we in exercise of our powers under Article
142 of the Constitution oflndia hereby direct that the marriage between
the appellant and the respondent shall stand dissolved by a decree
of divorce. All pending c'lses arising out of the matrimonial proceedings F
and the maintenance proceedings under Section 125 Cr. PC pending
between the parties shall stand disposed of and consigned to the
records in the respective courts on being moved by either of the
parties by providing a copy of this order, which has settled all those
disputes in tenns of the settlement. This appeal is disposed of in the
above terms." G
In the case ofAshok Hurra v. Rupa Bipin Zaveri etc. reported in [1997]
4 SCC 226, this Court while dealing with a matrimonial matter quoted few
excerpts from the Seventy-first Report of the Law Commission of India on the
Hindu Marriage Act, 1955 "Irretrievable Breakdown of Marriage" dated
7.4.1978. We deem it appropriate to reproduce some excerpts from the said H
164 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A report as under:
"Irretrievable breakdown of marriage is now considered, in the
laws of a number of countries, a good ground of dissolving the
marriage by granting a decree of divorce.

B * * *
Proof of such a breakdown would be that the husband and wife
have separated and have been living apart for, say, a period of five
or ten years and it has become impossible to resurrect the marriage
or to reunite the parties. It is stated that once it is known that there
C are no prospects of the success of the marriage, to drag the legal tie
acts as a cruelty to the spous~ and gives rise to crime and even abuse
of religion to obtain annulment of marriage.

* * *
D The theoretical basis for introducing irretrievable breakdown .as a
ground of divorce is one with which, by now, lawyers and others have
become familiar. Restricting the ground of divorce to a particular
offence or matrimonial disability, it is urged, causes injustice in those
cases where the situation is such that although none of the parties
is at fault, or the fault is of such a nature that the parties to the
E marriage do not war.t to divulge it, yet there has arisen a situation in
which the marriage cannot be worked. The marriage has all the external
appearances of marriage, but none of the reality. As is often put
pithily, the marriage is merely a shell out of which the substance is
gone. In such circumstances, it is stated, there is hardly any utility in
F maintaining the marriage as a facade, when the emotional and other
bounds which are of the essence of marriage have disappeared.

After the marriage has ceased to exist in substance and in reality,
there is no reason for denying divorce. The parties alone can decide
whether their mutual relationship provides the fulfilment which they
G seek. Divorce should be seen as a solution and an escape roure out
of a difficult situation. Such divorce is unconcerned with the wrongs
of the past, but is concerned with bringing the parties and th¢ children
to terms with the new situation and developments by working out the
most satisfactory basis upon which they may regulate their relationship
in the changed circumstances.
H
SANGHAMITRA GHOSH''· KAJAL KUMAR GHOSH [DAL VEER BHANDARI, J.] 165

* * * A
Moreover, the essence of marriage is a sharing of common life, a
sharing of all the happiness that life has to offer and all the misery
that has to be faced in life, an experience of the joy that comes from
enjoying, in common, things of the matter and of the spit it and from
showering love and affection on one's offspring. Living together is a B
symbol of such sharing in all its aspects. Living apart is a symbol
indicating the negation of such sharing. It is indicative of a disruption
of the essence of marriage -"breakdown"- and if it continues for a
fairly long period, it would indicate destruction of the essence of
marriage "irretrievable breakdown"."
c
In order to do complete justice in the matrimonial matters, this Court has
been less hesitant in exercising its extra-ordinary jurisdiction under Article 142
of the Constitution. To illustrate this fact, reference of some decided matrimonial
cases is given hereinbelow.

rn Swati Verma V. Rajan Verma & Ors reported in [2004] l sec 123, this D
Court came to a definite conclusion that the marriage between the parties has
irretrievably broken down and with a view to restore good relationship and
to put quietus to all litigations between the parties and not to leave any room
for future litigation, so that they may live peacefully hereafter, this Court
granted a decree of divorce by mutual consent while exercising its power E
under Article 142 of the Constitution.

This Court while exercising its unique power vested under Article 142
of the Constitution in a transfer petition in the case of Madhuri Mehta v.
Meet Verma reported in [ 1997] 11 SCC 81, observed as under:
F
"During the course cf hearing of this transfer petition, parties have
jointly made an application under Section 13-B of the Hindu Marriage
Act, 1955 before us praying for dissolution of their marriage by mutual
consent and in the body of the application a provision has been made
for their only child. Though the child has been conferred the right to
visit his father as and when he likes, there is no corresponding right G
... with the father to visit his child. That state of affairs would be
violating the rights of the child and the father. The husband will, thus,
have a right of visitation to see his child but after giving due intimation
to the mother. The parties have been estranged and have kept apart
since January 1996. Earlier to the present status, the parties had their H
166 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A earlier marriages broken or disrupted. The husband lost his wife in a
vehicular accident and the wife had divorced her earlier husband. In
this background their differences can well be appreciated when both
of them are highly educated doctors. Keeping that in view, we entertain
this application and grant.them divorce by mutual consent in exercise
of our powers under Article 142 of lhe Constitution, for which there
B is ample authority reflective from past decisions of this Court. The
divorce petition pending in the Family Court at Patna, shall stand
disposed of automatically by this order.

The transfer petition and the divorce petitions are disposed of
accordingly."
c
In another transfer petition in the matrimonial matter, in Anita Sabharwal
v. Anil Sabhanval reported in [1997] I I SCC 490; this Court was of the view
that there was no hope for the parties to live together and passed the
following order:
D ."A divorce petition being HMA Case No.863 of I994 preferred
by the respondent-husband was pending in the Court of Shri A.K. t
Pathak, Additional District Judge, Delhi. The instant transfer petition I
was moved by the petitioner-wife seeking transfer of the said case to
the Family Court, Mumbai. During the pendency of the transfer
E petition, parties as well as their counsel had on 9.9.1996 put on record
a compromise deed wherein they have agreed to get divorce by
mutual consent. Strictly speaking, the preconditions of such claim
have not been laid inasmuch as a petition to that effect has not been
filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act)
before the first·matrimonial court, and that.the statutory period of 6
F months has not even commenced. Be that as it may, it stands
established beyond doubt on our summoning of the original file -
HMA Case No.863 of 1994 - that the parties were married about 14
years ago, have spent the prime of their life in acrimony and litigating
and that it is time that their mutuality bears some fruit in putting them
G apart. Therefore, we take the divorce petition HMA Case No.863 of
1994 on our own file and import thereto the compromise deed put on
record by the parties jointly. In terms therewith, a sum of Rs: 7 lakhs
stands paid to the wife by means of 3 separate bank drafts of Rs.2
lakhs, Rs.2 lakhs and Rs.3 Jakhs. Recurring provision has been made
therein for their children's education and visitation rights of the father.
H
SANGHAMITRA GHOSH 1·. KAJAL KUMAR GHOSH [DAL VEER BHANDARI,].) 167

We have questioned the parties and they are eager to dissolve the A
matrimonial tie so that they can rearrange their lives well in time. We,
therefore, in the spirit of Section 13-B of the Act, and in view of the
fact that all hopes to unite them tQgether have gone, hereby grant to
the parties divorce by a decree of dissolution by mutual consent to
end their prolonged unhappiness. Ordered accordingly. The transfer B
petition stands disposed of."

We have heard learned counsel for the parties. This Court adjourned
the proceedings from time to time to ensure that the parties may reconcile the
differences and live together again, but this has not happened. It is indeed
the obligation of the Court and all concerned that the marriage status should, C
as far as possible, as long as possible and whenever possible, be maintained.
But as aptiy observed by this Court, in a recent decision in Naveen Kohli
v. Neelu Kohli reported in [2006] 4 SCC 558, that when the marriage is totally
dead, in that event, nothing is gained by trying to keep the parties tied forever
to a marriage which in fact has ceased to exist.
D
In the instant case, we are fully convinced that the marriage between
the parties has irretrievably broken down because of incompatibility of
temperament. Jn fact there has been total disappearance of emotional
substratum in the marriage. 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, therefore, the public interest E
and interest of all concerned lies in the recognition of the fact and to declare
defunct de Jure what is already defunct de facto as observed in Naveen
Koh/i's case (supra).

In view of peculiar facts and circumstances of this case, we consider F
it appropriate to exercise the jurisdiction of this Court under Article 142 of the
Constitution.

In order to ensure that the parties may live peacefully in future, it has
become imperative that all the cases pending between the parties are directed
to be disposed of. According to our considered view, unless all the pending G
cases are disposed of and we put a quietus to litigation between the parties,
it is unlikely that they would live happily and peacefully in future. In our
view, this will not only help the parties, but it would be conducive in the
interest of the minor son of the parties.

On consideration of the totality of the facts and circumstances of the H
168 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A case, we deem it appropriate to pass the order in the folio.Jing terms:
(a) The parties are directed to strictly adhere to the Terms of
Compromise filed before this Court and also the orders and
directions passed by this Court;
(b) We direct that the cases pending !zetween the parties, as
B enumerated in the preceding paragraphs, are disposed of in view
of the settlement between the parties; and
(c) All pending cases arising out of the matrimonial proceedings
including the case of restitution of conjugal rights and
guardianship case between the parties shall stand disposed of
c and consigned to the records in the respective courts on being
moved by either of the parties by providing a copy of this order,
which has settled all those disputes in terms of the settlement.

These transfer petitions are accordingly disposed of. In the facts and
circumstances of the case, we direct the parties to bear their own costs.

S.K.S. Petition disposed of.