2025 INSC 254
SUPREME COURT OF INDIA
(HON’BLE
PANKAJ MITHAL, J. AND HON’BLE SANDEEP MEHTA, JJ.)
VISHAL SHAH
Petitioner
VERSUS
MONALISHA GUPTA
Respondent
Criminal
Appeal No(S). OF 2025 (Arising out of SLP(Crl.) No(s). 4297 of 2023)-Decided on
20-02-2025
Criminal, Domestic Violence
(A) Domestic
Violence Act, 2005, Section 26 – Domestic Violence - Order instructing
authorities to initiate extradition proceedings – Challenge as to – Complaint by
respondent against appellant-husband – Appellant residing in USA could not appear personally before the Court
- Learned trial Court vide order dated 15th September, 2022, had directed the
competent authorities to start the extradition process against the appellant -
Apparent that the appellant’s inability to travel to India and appear in
Miscellaneous Case No. 440 of 2022, filed by the respondent under Section
26 of the DV Act, stemmed from the impoundment of his passport, a circumstance
beyond his control. Consequently, the order of the learned JMFC directing the
initiation of extradition proceedings against the appellant as a consequence of
his non-appearance, despite being aware of the fact of impounding of the
passport of the appellant, is untenable and unsustainable in the eyes of the
law - Otherwise also there is no requirement for the personal presence of any
party in the proceedings under the DV Act, because they are quasi-criminal
in nature and do not entail any penal consequences except when there is a
breach of a protection order, which is the only offence provided
under Section 31 of the DV Act - High Court vide a non-speaking order
dismissed the revision petition, stating that no grounds for interference were
made out - High Court could have examined the record of the case, particularly
the reasons for the appellant's failure to appear due to circumstances beyond
his control, and hence, a reasoned decision addressing the merits of the matter
was expected in these circumstances - Order dated 15th September, 2022, passed
by the trial Court, and the order dated 25th January, 2023, passed by
the High Court are liable to be quashed and set aside.
(Para 20 to 22)
(B)
Constitution of India, Article 142 – Hindu Marriage Act, 1955, Section 13 –
Irretrievable breakdown of marriage – Divorce – Permanent alimony - Marriage
between the appellant-husband and the respondent-wife was solemnized on 19th
February, 2018 and that the spouses resided together for a short duration of 80
days in the USA and have been living separately since May, 2018 - The
respondent-wife is residing in Tripura, India, and on the other hand, the
appellant-husband has been primarily living in the USA, for the last 5 years -
Multiple cases have been filed by the respondent against the appellant and his
family members and the appellant and his family members have also filed
numerous cases against the respondent - Filing of the aforesaid cases by the
respondent-wife reflects her vindictive attitude towards the appellant and his family
members and unambiguously reflects the bitterness that has seeped into the
marital relationship - The admitted long-standing separation, nature of
differences, prolonged and multiple litigations pending adjudication, and the
unwillingness of the parties to reconcile are evidence enough to establish
beyond all manner of doubt that the marriage between the parties has broken
down irretrievably and that there is no scope whatsoever for marriage to
survive - There is no child born from the wedlock and therefore, any direction
to allow the parties to part ways would only affect the parties themselves and
not any innocent child – Held to be a fit case warranting the exercise of the
discretion conferred under Article 142(1) of the Constitution of
India to dissolve the marriage between the parties on the grounds of
irretrievable breakdown of marriage - All the criminal cases/DV
Act complaints and civil cases pending between the respondent and the
appellant and his family members shall stand closed.
(Para 28, 29, 31, 32,
36, 37 and 47)
(C)
Hindu Marriage Act, 1955, Section 13 and 25 – Constitution of India, Article
142(1) – Irretrievable breakdown of marriage – Divorce – Permanent alimony -
Respondent is currently employed and earning a salary of Rs. 50,000 per month -
Respondent averred that the appellant earned Rs. 8 lakh per month in 2018 and
claimed that he would now be earning more than Rs. 10 lakh per month -
Appellant, in his rejoinder affidavit, admitted that while he was earning Rs. 8
lakh per month in 2018, however, at present, he is unemployed and is facing
challenges in securing employment in India due to multiple cases filed by the
respondent - Considering the material on record, the totality of the
circumstances, and the peculiar facts of this case, a one-time settlement as
alimony, an amount of Rs. 25 lakhs for the respondent would be a fair
arrangement be just, fair and reasonable to be paid by the appellant to the
respondent towards settlement of all pending claims and to cover the permanent
alimony - The appellant shall pay the amount provided above towards permanent
alimony to the respondent within a period of two months - Marriage between the
appellant and the respondent dissolved
on the ground of irretrievable breakdown of marriage - The Registry to draw a
decree accordingly - This amount
shall be disbursed to the respondent within a period of two weeks
thereafter - An undertaking to that effect shall be filed before this Court
within two weeks from today – Made clear that if the respondent refuses to
accept the aforesaid amount and fails to draw the same from the Registry within
the aforesaid period, the same shall be repaid to the appellant.
(Para 38 to 47)
(D)
Passports Act, 1967, Section 10 – Impounding of passport – Principles of
natural justice – Judicial
review - 42. Before we conclude our discussion, we must note that the act of
impounding the passport of the appellant by the concerned authorities of the
Government of India was ex-facie illegal in the eyes of the law. In the present
case, the appellant’s passport was impounded on the mere premise that the
respondent has filed numerous cases before the various courts in India. that
the act of impounding the appellant’s passport under Section 10 of
the Passport Act, 1967, was carried out without granting the appellant an
opportunity to be heard. This clear violation of the principles of natural
justice renders the act of impounding the passport ex-facie illegal.
Consequently, we hold that the concerned authorities should release the
appellant’s passport within a period of one week from today.
(Para
42 and 46)
JUDGMENT
Mehta, J. :- Leave granted.
2.
The instant appeal is directed against the judgment and order dated 25th
January, 2023, passed by the High Court of Calcutta in Criminal Revision being
CRR No. 135 of 2023, whereby the High Court dismissed the said Criminal
Revision filed by the authorized representative of the appellant[The appellant is the husband of the
respondent. For short, ‘appellant’.] , i.e., his sister, and affirmed the
order dated 15th September, 2022, passed by the learned Judicial Magistrate,
Howrah[Hereinafter, being referred to as
‘trial Court’.] , in Miscellaneous Case No. 440 of 2022 arising out of
Criminal Case No. 446C of 2020. Learned trial Court vide order dated 15th
September, 2022, had directed the competent authorities to start the
extradition process against the appellant.
3.
The facts in a nutshell are that the marriage between the appellant and
respondent was solemnized on 19th February, 2018, as per Hindu rites and
ceremonies. In March, 2018, the couple moved to the United States of America
(‘USA’), where the appellant has been working as a Software Engineer since
2014.
4.
The appellant alleges that, while residing in the USA, he was subjected to
continuous domestic abuse at the hands of the respondent-wife[For short, ‘respondent’.] and endured
the same. On 23rd March, 2018, he reported an incident of abuse to the local
police, claiming protection and displaying visible injuries on his face.
Although the appellant clarified that he did not wish to press charges, he
requested the police to issue a warning to his wife. Despite this intervention,
the abuse persisted. On 2nd April 2018, the respondent allegedly became enraged
and scratched the appellant's face, causing significant injuries. Unable to
face the situation, the appellant called the police again, leading to the
respondent being charged with second-degree assault.
5.
On account of the grave differences, the relationship between the appellant and
the respondent became strained, leading to estrangement after only 80 days of
matrimony. Accordingly, the couple returned to India. When it was time to
return to the USA, the respondent refused to accompany the appellant, who left
alone for the USA on 19th May, 2018. The couple has not begotten a child from
the wedlock. Shortly, after the appellant’s return to the USA, the respondent
initiated multiple legal proceedings against the appellant and his family
members in various courts/fora across the country. The details of these cases,
along with the respective dates of filing, are as follows:
“1) In Muzaffarpur, Bihar Courts: -
a. Criminal case No.
852 of 2018 under Sections
498A, 307, 506, 406, 323, 324 IPC[The Indian Penal Code, 1860 (in short
‘IPC’).] and Sections
3 & 4 DP Act[The Dowry
Prohibition Act, 1961 (in short ‘DP Act’).] before Sub-Divisional Judicial Magistrate,
Muzaffarpur, Bihar against the appellant, Gayatri Shah(mother-in-law of the
respondent), Bhavna Chatterjee(sister-in-law of the respondent) & Sourav
Chatterjee(husband of the sister-in-law of the respondent). [Date of filing:
14th June, 2018]
b. Complaint Case No.
1009 of 2018 under Section 12 of the DV Act[The Protection of Women from Domestic Violence Act, 2005 (in
short ‘DV Act’).] before Additional Chief Judicial Magistrate 1st, West
Muzaffarpur, Bihar, against the appellant, Gayatri Shah, Bhavna Chatterjee
& Sourav Chatterjee.
[Date of filing: 5th
July, 2018]
c. Matrimonial Suit
No. 280 of 2018 under Section 9 HMA[The Hindu Marriage Act, 1955 (in short ‘HMA’).] , before the
Family Court, Muzaffarpur, Bihar, seeking Restitution of Conjugal Rights
against the appellant.
[Date
of filing: 5th July, 2018]
d. Maintenance Case
No. 229 of 2018 under Section 125 CrPC[The Code of Criminal Procedure, 1973 (in short ‘CrPC’.]
before the Family Court, Muzaffarpur, Bihar for Maintenance against the
appellant.
[Date
of filing: 5th July, 2018]
e. Complaint case No.
444 of 2020 under Sections 405, 406, 407, 420, 379, 499, 500, 324 and 506 IPC
before Additional Chief Judicial Magistrate, Muzaffarpur, Bihar against the
appellant, Gayatri Shah, Bhavna Chatterjee, Sourav Chatterjee, Vijayeta Soni, Dilip
Soni & Rajkumari Soni.
[Date of filing: 15th
May, 2020]
f. Complaint Case No.
698 of 2021 under Sections 31 & 32 of DV Act before
Additional Chief Judicial Magistrate, 2nd Court, Muzaffarpur, Bihar against
Gayatri Shah, Bhavna Chatterjee, and Sourav Chatterjee.
[Date of filing: 14th
July, 2021]
g. Complaint Case No.
699 of 2021 under Sections 31 & 32 of the DV Act before
Additional Chief Judicial Magistrate, 2nd Court, Muzaffarpur, Bihar against the
appellant.
[Date of filing: 14th
July, 2021]
2) In Howrah, West Bengal: -
a. Complaint case No.
79 of 2021 under Section 379 IPC before Ld. I Judicial Magistrate,
Howrah, West Bengal, against Mrs. Gayatri Shah, Bhavna Chatterjee, and the
appellant.
[Date of filing: 10th March, 2021]
b. Police case No. 72
of 2021 under Sections 186, 188, and 332 IPC [Arising out
of a police complaint made by the respondent Bhavna Chatterjee, i.e., the
married sister of the appellant]
[Date of filing: 4th
March, 2021]
c. Complaint Case No.
440 of 2022, filed under Sections 26, 18, 19, 20, 21, 22,
and 12 of the DV Act, before Ld. I Judicial Magistrate, Howrah, West
Bengal, against the appellant, Gayatri Shah, Bhavna Chatterjee, Sourav
Chatterjee, Sudipa Chatterjee (mother-in-law of the Bhavna Chatterjee), Dilip
Soni (husband of the sister-in-law of the respondent), Vijayeta Soni
(sister-in-law of the respondent).
[Date of filing: 11th July, 2022]”
6.
In view of the aforesaid cases registered against the appellant, his passport
was impounded by the concerned authorities on 3rd October, 2018. Between 2018
and 2020, the respondent resided in the same house with her mother-in-law,
i.e., the appellant’s mother. As per the appellant, during this period, the
respondent had subjected his mother to severe physical and mental torture,
ultimately forcing her to leave the house and seek shelter at her daughter's
residence on 14th September, 2020. Consequently, a Complaint Case No. 446C of
2020 was filed by the mother of the appellant against the respondent for the
offences punishable under Sections
323, 341, 342, 379, 403, 504, 506,
and 120B IPC.
7.
As a counterblast, the respondent also filed an application under Section
26 of the DV Act against the appellant, his mother, and five other close
relatives, which came to be registered as Miscellaneous Case No. 440 of 2022 in
Complaint Case No. 446C of 2020. The application filed by the respondent was
proceeded with, and vide order dated 11th August 2022, the appellant was
directed to personally appear before the Court on the scheduled date, i.e.,
15th September 2022. However, when the appellant failed to appear before the
trial court on the notified date, the competent authorities were instructed to
initiate the extradition process against him.
8.
Being aggrieved by the direction to commence the extradition process, the
appellant, through his authorized representative i.e., his sister, filed
Criminal Revision being CRR No. 135 of 2023 before the High Court of Calcutta,
which came to be dismissed vide the judgment and order dated 25th January,
2023, which is impugned in this appeal by special leave.
9.
During the pendency of the instant appeal, the appellant has filed an
Interlocutory Application[I.A. No. 35450
of 2024.] under Article 142 of the Constitution of India, seeking
dissolution of marriage on the ground of irretrievable breakdown.
10.
Learned senior counsel representing the appellant, urged that the appellant and
the respondent cohabited together only for a short duration of 80 days after
their marriage and that too in the USA. Thereafter, there has been no spousal
interaction whatsoever between the parties so as to justify the lodging of
numerous cases filed by the respondent against the appellant and the in-laws in
the courts of different jurisdictions. He contended that the respondent has
launched a vendetta with evil intention to harass and humiliate the appellant
and his family members, which is manifested from the multiple cases filed by
her in different fora with almost identical allegations.
11.
Learned senior counsel further submitted that the appellant's old and ailing
mother was thrown out of her own house by the respondent. He urged that
the cases instituted (supra) by the respondent against the appellant and his
family members are a clear reflection of her vindictive nature and are nothing
short of a gross abuse of the process of law. Learned counsel urged that the
appellant gave a generous proposal of permanent alimony to the respondent for
an amicable settlement of all the disputes, but since she has the propensity to
continue the harassment and humiliation of the appellant and his family
members, the respondent has bluntly repelled this genuine offer of settlement
made by the appellant. She has also countered all efforts to settle the
disputes despite multiple mediation efforts.
On
these grounds, learned senior counsel representing the appellant urged that
this is a fit case wherein this Court should feel persuaded to step in to end
the plight of the appellant and his family members by exercising the powers
conferred by Article 142 of the Constitution of India. He prayed that
while quashing the proceedings of the various cases filed by the respondent
against the appellant and his family members, a direction deserves to be
issued dissolving the marriage between the appellant and the respondent.
12.
Learned counsel representing the respondent did not dispute the fact that the
spouses resided together only for a short period of less than three months
after their marriage in the year 2018. However, he vehemently and fervently
opposed the submissions advanced by the appellant's counsel, urging that the
respondent was maltreated and was unlawfully turned out of the matrimonial home
on account of the greed of the appellant and his family members for dowry.
13.
Learned counsel contended that none of the cases filed by the respondent are
barred by limitation, nor can it be said that the allegations levelled by the
respondent against the appellant and his family members do not disclose a valid
cause of action. He submitted that the appellant was granted conditional
permission to travel abroad by the family court on 9th May, 2022. However,
instead of complying with the family court's directions, the appellant failed
to appear for subsequent hearings and sent derogatory and threatening e-mails
to the respondent. Under these circumstances, the Magistrate was fully
justified in directing the initiation of extradition proceedings against the
appellant.
Learned
counsel thus concluded his submissions, stating that it is not a fit case
wherein this court should feel inclined to grant any relief to the appellant by
exercising its extraordinary jurisdiction under Articles
136 and 142 of the Constitution of India.
14.
We have heard the learned counsels appearing for the parties and have given our
thoughtful consideration to the submissions advanced and perused the pleadings.
15.
Taking note of the facts and circumstances narrated above, the first question
that arises for consideration is whether the initiation of the extradition
process against the appellant vide order dated 15th September 2022 is justified
in the eyes of the law.
16.
It is undisputed that the appellant returned to the USA on 19th May, 2018, and
his passport was impounded under Section 10 of the Passport Act,
1967, by the concerned authorities on 3rd October, 2018 because of numerous
matrimonial and other cases filed against him by the respondent.
17.
The respondent and her mother-in-law had been residing under the same roof
since 2018. The mother- in-law had alleged that she was brutally assaulted, and
her modesty was outraged by the respondent, compelling her to file Complaint
Case No. 446C of 2020 before the Ld. JMFC, Howrah, under Sections
323, 341, 342, 379, 403, 504, 506,
and 120B IPC against the respondent. It is further claimed that,
despite her old age, she was forced to leave her own home to ensure the safety
of her property and dignity from the vicious design of the respondent.
18.
In the afore-mentioned complaint case, an application[Miscellaneous Case No. 440/2022.] was filed by the respondent
under Section 26 of the DV Act against the appellant, her mother-in-
law, and their five other relatives. A notice was issued to the appellant vide
order dated 21st July 2022. Subsequently, on 11th August 2022, the learned JMFC
passed an interim order in favour of the respondent, prohibiting her eviction
from the matrimonial home and directing the personal appearance of the
appellant (respondent therein) and other respondents on the next hearing date.
However, when the matter was listed again, the Court noticed that the appellant
had not returned to India, and the concerned authorities were directed to
initiate the extradition process against him. We may observe that as the
proceedings under the DV Act are quasi-criminal in nature, thus,
there cannot be any justification to require the personal presence of the
appellant in these proceedings. Thus, the learned Magistrate grossly erred
while directing the appellant to remain personally present in the Court.
19.
At this juncture, it is pertinent to note that while passing the order dated
15th September 2022, the learned JMFC took into account the fact that the
passport of the appellant was impounded by the concerned authorities on 3rd
October, 2018 and when the appellant lay challenge to this act of impounding
before the High Court of Calcutta by filing a Writ Petition being WPA No. 4743
of 2020, the same was also dismissed by the High Court vide judgment and order
dated 15th January, 2021, while affirming the revocation and barring the
appellant herein from filing any appeal under Section 11 of the
Passport Act, 1967. The relevant observations from the order passed by the JMFC
dated 15th September, 2022 are as follows:-
“Finally, the Govt of
India, on its motion, revoked/impounded his passport (J1863634) on
03.10.2018 u/s 10 of the Passport Act, 1967, and this, the letter no.
17(1249)18/PSK/RPO/KOL (CALA07137810) dr. 04.10.2018 suggests. Against such
revocation, he had approached the Hon'ble Calcutta High Court through WPA 4743
of 2020. The order dated 15.01.2021 of that action suggests that the Hon'ble
High Court not merely dismissed his writ petition but has debarred him from any
appeal u/s 11 of the said Act of 1967 while affirming the
revocation.”
(emphasis
supplied)
20.
It is apparent that the appellant’s inability to travel to India and appear in
Miscellaneous Case No. 440 of 2022, filed by the respondent under Section
26 of the DV Act, stemmed from the impoundment of his passport, a
circumstance beyond his control. Consequently, the order of the learned JMFC
directing the initiation of extradition proceedings against the appellant as a
consequence of his non-appearance, despite being aware of the fact of
impounding of the passport of the appellant, is untenable and unsustainable in
the eyes of the law. Otherwise also, as noted above, there is no
requirement for the personal presence of any party in the proceedings under
the DV Act, because they are quasi-criminal in nature and do not entail
any penal consequences except when there is a breach of a protection order,
which is the only offence provided under Section 31 of the DV Act.
21.
The appellant challenged the order dated 15th September, 2022, passed by the
learned JMFC by filing Criminal Revision being CRR No. 135 of 2023 before the
High Court of Calcutta. However, the High Court vide a non-speaking order dated
25th January, 2023, dismissed the revision petition, stating that no grounds
for interference were made out. This Court is of the considered opinion that
the High Court could have examined the record of the case, particularly the
reasons for the appellant's failure to appear due to circumstances beyond his
control, and hence, a reasoned decision addressing the merits of the matter was
expected in these circumstances.
22.
In the wake of the above discussion, the order dated 15th September, 2022,
passed by the trial Court, and the order dated 25th January, 2023, passed by
the High Court of Calcutta, are liable to be quashed and set aside.
23.
The next question that arises for our consideration is whether there is an
irretrievable breakdown of the marriage of the appellant and the respondent
requiring this Court to exercise its extraordinary jurisdiction
under Article 142 of the Constitution of India to do complete
justice.
24.
The issue regarding the invocation of the extraordinary powers of this Court
under Article 142(1) of the Constitution of India in cases of marital
disputes is no longer res-integra and has been settled by the Constitution
Bench of this Court in Shilpa Sailesh v. Varun Sreenivasan[2023 SCC OnLine SC 544.]. The Court
held that in the exercise of the power under Article 142(1) of the
Constitution of India, this Court has discretion to dissolve the marriage on
the ground of its irretrievable breakdown. The relevant observations are
extracted below: -
“42. This question is
also answered in (sic) affirmative, inter alia, holding that this Court, in the
exercise of power under Article 142(1) of the Constitution of India,
has the discretion to dissolve the marriage on the ground of its irretrievable
breakdown. This discretionary power is to be exercised to do ‘complete justice’
to the parties, wherein this Court is satisfied that the facts established show
that the marriage has completely failed, and there is no possibility that the
parties will cohabit together, and continuation of the formal legal
relationship is unjustified. The Court, as a court of equity, is required to
also balance the circumstances and the background in which the party opposing
the dissolution is placed.”
25.
The Constitution Bench further laid down the factors to be considered for such
determination, which were also reiterated in the case of Kiran Jyot Maini
v. Anish Pramod Patel[2024 SCC OnLine SC
1724.]. This Court, in both these judgments, opined that the factors to be
examined inter alia include the period of cohabitation between the parties
after marriage; the last cohabitation among the parties; the period of
separation; the nature and the gravity of allegations made by the parties
against each other and their family members; the orders passed in the legal
proceedings from time to time, cumulative impact on the personal relationship;
whether, and how many attempts were made to settle the disputes by intervention
of the court or through mediation, and such other similar factors.
26.
On the issue as to grant of divorce on the ground of irretrievable breakdown of
marriage in the exercise of jurisdiction under Article 142(1) of the
Constitution of India, this Court, in a very recent judgment of Rinku
Baheti v Sandesh Sharda[2024 SCC OnLine
SC 3801.], held that the factual analysis has to be undertaken in each case
to determine as to what constitutes an ‘irretrievable breakdown’ while keeping
in mind the non-exhaustive factors laid down in Shilpa
Sailesh (supra). The relevant observations are as follows:-
“8.11 But what
constitutes an irretrievable breakdown has to be determined in each case by
undertaking a factual analysis of the case and using judicial discretion in
light of several non-exhaustive factors laid down by this Court in
the judgment of Shilpa Sailesh. This Court has to reach the conclusion that the
marriage has “completely failed” of and there is no possibility of the parties
cohabiting together as husband and wife, and that the continuation of the
formal legal relationship of marriage is unjustified lacking in substance and
content.”
27.
Considering the above principles, we need to consider the factual matrix in the
instant case before arriving at a decision on the application filed by the
appellant under Article 142 of the Constitution of India.
28.
The marriage between the appellant-husband and the respondent-wife was
solemnized on 19th February, 2018. It is not in dispute that the spouses
resided together for a short duration of 80 days in the USA and have been
living separately since May, 2018. The respondent-wife is residing in Tripura,
India, and on the other hand, the appellant-husband has been primarily living
in the USA, for the last 5 years.
29.
It is also to be noted that multiple cases have been filed by the respondent
against the appellant and his family members, as recorded in Para 5 of this
judgment. The appellant and his family members have also filed numerous cases
against the respondent. The cases filed against the respondent and her relatives
are as follows:-
a. Misc. Case No.
54/2020 (Gayatri Shah v. Monalisa Gupta and others, which was dismissed by
learned District Judge, Muzaffarpur.
b. Misc. Case No.
20/2020 (Gayatri Shah v. Monalisa Gupta) is pending in the Court of Learned
ACIM 2nd, Muzaffarpur.
c. Cr. Complaint Case
No. 446C/2020 (Gayatri Shah v. Monalisa Gupta and others) pending in the Court
of Learned JMFC, Howrah, West Bengal.
d. Title Suit Case No.
946/2020 (Bhavna Shah v. Monalisa Gupta).
e. Eviction Suit No.
1156/2020 (Bhavna Shah v. Monalisa Gupta).
f. Money Suit Case No.
342/2023 (Vishal Shah v. Monalisa Gupta) is pending in the court of learned
Civil Judge, Junior Division, Howrah, West Bengal.
g. Divorce Case No.
C-13-FM-18-001269 and C-13-FM-18-001451 (Vishal Shah v. Monalisa Gupta), which
were dismissed by the State of Maryland, USA.
h. Domestic Violence
Case No. D101FM18000130 (Vishal Shah v. Monalisa Gupta), which is pending in
County USA.
i. NGR Case No.
444/2020 (Bhavna Shah v. Monalisa Gupta), closed by Serampore Court.
j. NGR Case No.
444/2020 (Gayatri Shah v. Monalisa Gupta), closed by Serampore Court.
30.
As can be observed from the above list, the parties and their family members
have indulged in multifarious litigations against each other, even though the
period of the spousal relationship was very brief, and the discord started way
back in 2018. The respondent filed a Complaint Case No. 1009 of 2018
under Section 498A IPC against the appellant and his family members.
In addition to the said complaint, the respondent has registered a Matrimonial
Suit No. 280 of 2018 under Section 9 HMA, seeking restitution of
conjugal rights. The respondent had also filed a Complaint Case No. 444 of 2020
under Sections 405, 406, 407, 420, 378, 499,
and 500 IPC against the appellant, her mother-in-law, and five other
family members. Apart from these cases, the respondent filed two Complaint
Cases bearing No. 698 of 2021(against the appellant's family members) and
No. 699 of 2021(against the appellant), under Sections
31 and 32 of the DV Act.
31.
The filing of the aforesaid cases by the respondent-wife reflects her
vindictive attitude towards the appellant and his family members and
unambiguously reflects the bitterness that has seeped into the marital
relationship. The tumultuous state of the marital relationship between the
parties is quite evident, irrespective of the fate of the criminal complaints
and the imputations made by the parties against each other. The passport of the
appellant was also impounded by the concerned authorities, pursuant to the
pending cases filed by the respondent.
32.
On the other hand, the appellant and his family members have also filed various
cases (Criminal Complaint Case, Title Suit Case, Eviction Suit, Money Suit,
Domestic Violence Case, and Divorce Case) against the respondent before various
courts.
33.
Further, Smt. Gayatri Shah (the old-aged mother of the appellant) has alleged
that she was brutally assaulted, and her modesty was outraged by the respondent
and that she has been ousted from her own house by the respondent on 14th
September, 2020. Resultantly, she was constrained to file a Complaint Case No.
446C of 2020 against the respondent under Sections
323, 341, 342, 379, 403, 504, 506 and 120B IPC.
Thus, the old-aged mother-in-law has also been entangled in the litigations
spurted owing to the matrimonial discord between the appellant and the
respondent, which also has an evident impact on the mind of the appellant in
how he perceives the acts of the respondent and his relationship with her.
34.
Thus, what emerges from the aforesaid facts is that:-
(i) The marriage between the parties did not really
take off at all.
(ii) The parties
cohabited with each other for a very short duration of 80 days, and during this
period as well, there was neither any cordiality nor any mutual love,
affection, or respect for each other.
(iii) No child has
been born from the wedlock.
(iv) Since 2019, the
appellant-husband has been residing in the USA, and the respondent-wife has
been residing in India.
(v) The parties have
filed numerous cases against each other, reflecting the ongoing conflicts and
disputes, which have further deteriorated their relationship and made any hope
of reconciliation virtually impossible.
(vi) Despite various
mediation attempts, all efforts to resolve the dispute between the parties have
been unsuccessful.
The
aforesaid facts give us the impression that there was hardly any cordiality or
meaningful marital relationship that flowed from the marriage between the
parties. It is evident that the relationship between the parties appears to be
strained from the beginning and has further soured over the years.
35.
Whatever may be the justification for the spouses living separately, with so
much time having passed by any marital love or affection that may have
developed between the parties seems to have evanesced. This is a classic case
of irretrievable breakdown of marriage. The admitted long-standing separation,
nature of differences, prolonged and multiple litigations pending adjudication,
and the unwillingness of the parties to reconcile are evidence enough to
establish beyond all manner of doubt that the marriage between the parties has
broken down irretrievably and that there is no scope whatsoever for marriage to
survive. Thus, no useful purpose, emotional or practical, would be served by
continuing the soured relationship. On the basis of the above factual matrix,
the present appears to be a case of irretrievable breakdown of marriage.
36.
Apart from the irreconcilable status of the relationship between the parties,
in the present case, another factor that has weighed with this Court in favour
of the exercise of the power under Article 142(1) of the Constitution
of India is that there is no child born from the wedlock and therefore, any
direction to allow the parties to part ways would only affect the parties
themselves and not any innocent child.
37.
Thus, this is a fit case warranting the exercise of the discretion conferred
under Article 142(1) of the Constitution of India to dissolve the
marriage between the parties on the grounds of irretrievable breakdown of
marriage.
38.
We have to now consider the question of assessing the alimony for the respondent
upon the dissolution of marriage between the parties. Learned senior counsel
for the appellant has fairly submitted that the appellant is willing to pay a
reasonable lump sum of money as permanent alimony to the respondent in order to
assist her in starting her life afresh and to put an end to multiple protracted
litigations. The respondent blatantly declined the said offer, stating that she
was not interested in the money of the appellant as her sole intent was to have
an opportunity to resume her marital life.
39.
Before going into the details of the financial position of the parties, it is
imperative that we highlight the position of law with regard to the
determination of permanent alimony. This Court, in the cases of Rajnesh v. Neha[(2021) 2 SCC 324.], Kiran Jyot Maini
(supra), and Parvin Kumar Jain v. Anju Jain[2024
SCC OnLine SC 3678.], provided a comprehensive criterion and a list of
factors to be looked into while deciding the question of permanent alimony,
which are as follows:-
i. Status of the
parties, social and financial. ii. Reasonable needs of the wife and the
dependent children.
iii. Parties’
individual qualifications and employment statuses.
iv. Independent income
or assets owned by the party.
v. Standard of life
enjoyed by the wife in the matrimonial home.
vi. Any employment
sacrifices made for family responsibilities.
vii. Reasonable
litigation costs for a non-working wife.
viii. Financial
capacity of the husband, his income, maintenance obligations, and liabilities.
40.
In the present case, it is a matter of record and an admitted fact that the
respondent is currently employed as a Research Specialist at PwC in Kolkata,
earning a salary of Rs. 50,000 per month. In her reply affidavit, the
respondent averred that the appellant earned Rs. 8 lakh per month in 2018 and
claimed that he would now be earning more than Rs. 10 lakh per month. The
appellant, in his rejoinder affidavit, admitted that while he was earning Rs. 8
lakh per month in 2018, however, at present, he is unemployed and is facing
challenges in securing employment in India due to multiple cases filed by the
respondent.
41.
Considering the material on record, the totality of the circumstances, and the
peculiar facts of this case, a one-time settlement as alimony for the
respondent would be a fair arrangement. Taking into account the standard of
living enjoyed by the respondent during the subsistence of the marriage, the
prolonged period of separation, and the financial status of both the parties,
an amount of Rs. 25 lakhs (Rupees twenty-five lakhs only) appears to be just,
fair and reasonable to be paid by the appellant to the respondent towards
settlement of all pending claims and to cover the permanent alimony. The
appellant shall pay the amount provided above towards permanent alimony to the
respondent within a period of two months from today.
42.
Before we conclude our discussion, we must note that the act of impounding the
passport of the appellant by the concerned authorities of the Government of
India was ex-facie illegal in the eyes of the law. In the present case, the
appellant’s passport was impounded on the mere premise that the respondent has
filed numerous cases before the various courts in India.
43.
The law regarding the impounding of a passport of an individual has been
settled by this Court in the case of Maneka Gandhi v. Union of India and
Anr. [(1978) 1 SCC 248.], wherein it
was held that the rules of natural justice must be followed before impounding a
passport under Section 10(3) of the Passports Act, 1967. Justice
Bhagwati, speaking for the majority, held as follows: -
“40. …………. Now it is
obvious that on a plain natural construction of Section 10(3)(c), it is
left to the Passport Authority to determine whether it is necessary to impound
a passport in the interests of the general public. But an order made by the
Passport Authority impounding a passport is subject to judicial review on the
ground that the order is mala fide, or that the reasons for making the order
are extraneous, or they have no relevance to the interests of the general
public or they cannot possibly support the making of the order in the interests
of the general public. It was not
disputed on behalf of the Union, and indeed, it could not be in view
of Section 10 sub-section (5) that, save in certain exceptional
cases, of which this was admittedly not one, the Passport Authority is bound to
give reasons for making an order impounding a passport……”
45. “……..We, however,
wish to utter a word of caution to the Passport Authority while exercising the
power of refusing or impounding, or cancelling a passport. The Passport
Authority would do well to remember that it is a basic human right recognised
in Article 13 of the Universal Declaration of Human Rights with which
the Passport Authority is interfering when it refuses or impounds, or cancels a
passport. It is a highly valuable right which is a part of personal liberty, an
aspect of the spiritual dimension of man, and it should not be lightly
interfered with. Cases are not unknown where people have not been allowed to go
abroad because of the views held, opinions expressed, or political beliefs, or
economic ideologies entertained by them. It is hoped that such cases will not
recur under a Government constitutionally committed to uphold freedom and
liberty but it is well to remember, at all times, that eternal vigilance is the
price of liberty, for history shows that it is always subtle and insidious
encroachments made ostensibly for a good cause that imperceptibly but surely
corrode the foundations of liberty.”
(emphasis
supplied)
44.
While concurring with the majority opinion, Chief Justice M.H. Beg (as he then
was) in his sole concurring opinion was of the view that: -
“218. A bare look at
the provisions of Section 10, sub-section (3) of the Act will show that
each of the orders which could be passed under Section 10, sub-section
(3)(a) to (h) requires a “satisfaction” by the passport authority on certain
objective conditions which must exist in a case before it passes an order to
impound a passport or a travel document. Impounding or revocation are placed
side by side on the same footing in the provision. Section 11 of the
Act provides an appeal to the Central Government from every order passed
under Section 10, sub-section (3) of the Act. Hence, Section 10,
sub-section (5) makes it obligatory upon the passport authority to “record in
writing a brief statement of the reasons for making such order and furnish to
the holder of the passport or travel document on demand a copy of the same
unless in any case, the passport authority is of the opinion that it will not
be in the interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country or in the interests
of the general public to furnish such a copy.
220. There can be no
doubt whatsoever that the orders under Section 10(3) must be based
upon some material even if that material consists, in some cases, of reasonable
suspicion arising from certain credible assertions made by reliable
individuals. It may be that, in an emergent situation, the impounding of a
passport may become necessary without even giving an opportunity to be heard
against such a step, which could be reversed after an opportunity given to the
holder of the passport to show why the step was unnecessary, but, ordinarily,
no passport could be reasonably either impounded or revoked without giving a
prior opportunity to its holder to show cause against the proposed action. The
impounding as well (sic) as revocation of a passport, seem to constitute
action in the nature of a punishment necessitated on one of the grounds
specified in the Act. Hence, ordinarily, an opportunity to be heard in defence
after a show-cause notice should be given to the holder of a passport even
before impounding it.”
(emphasis
supplied)
45.
Further, this Court, in Rajesh Sharma v. State of U.P. [(2018) 10 SCC 472.], while dealing with the question of arrest
and fair investigation in a case alleging the offence of cruelty under Section
498A IPC, was of the view that in respect of persons ordinarily residing
out of India impounding of passports or issuance of ‘Red Corner Notice’ should
not be a routine.
46.
Applying the afore-mentioned legal principles to the present case, we find that
the act of impounding the appellant’s passport under Section 10 of
the Passport Act, 1967, was carried out without granting the appellant an
opportunity to be heard. This clear violation of the principles of natural
justice renders the act of impounding the passport ex-facie illegal.
Consequently, we hold that the concerned authorities should release the
appellant’s passport within a period of one week from today.
47.
Resultantly, we conclude as below: -
a. The
judgments/orders dated 15th September, 2022 passed by the learned Judicial
Magistrate, Howrah and 25th January, 2023 passed by the High Court are quashed
and set aside.
b. The application
filed by the appellant- husband, under Article 142(1) of the
Constitution of India, is allowed and the marriage between the appellant and
the respondent is dissolved on the ground of irretrievable breakdown of
marriage. The Registry to draw a decree accordingly.
c. Consequently, all
the criminal cases/DV Act complaints and civil cases pending between the respondent
and the appellant and his family members shall stand closed.
d. The appellant shall
deposit a sum of Rs.25,00,000/- (Rupees Twenty-Five Lakhs only) in the Registry
of this Court as the amount of permanent alimony payable to the respondent
within two months from today. This amount shall be disbursed to the
respondent within a period of two weeks thereafter. An undertaking to that
effect shall be filed before this Court within two weeks from today. We also
make it clear that if the respondent refuses to accept the aforesaid amount and
fails to draw the same from the Registry within the aforesaid period, the same
shall be repaid to the appellant.
e. The passport of the
appellant shall be released by the authorities concerned within a period of one
week from today.
48.
In view of the above, the appeal stands disposed of.
49.
Pending application(s), if any, shall also stand disposed of.
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