In the instant case, the Appellant and the Respondent were District Judges working in the State of West Bengal. Their marriage was performed on 19th June, 1992 as per the Special Marriage Act, 1954. 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. The Appellant alleged that, the differences arose because of the improper behaviour of the Respondent in not showing due respect to his ailing father. It was further alleged that, the 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.
Trial Court found that, the Appellant failed to prove cruelty on the 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.
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 proceeding for divorce and forcing the Appellant to stay in a dead marriage would itself constitute mental cruelty. 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, Court is of 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.
The 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. 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 matrimony. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue. In the peculiar facts of this case and in order to do complete justice between the parties, the Appeal is allowed and the application for divorce filed by the Appellant under Section 27 of the Act is allowed.