While passing a decree of divorce on the ground of irretrievable breakdown of marriage, the Apex Court in a cogent, composed, commendable and creditworthy judgment titled Ajay Kumar Rathee vs Seema Rathee in Civil Appeal No. 5141/2011 delivered as recently as on March 10, 2022 has refused to allow the daughter born to the couple to claim education and marriage expenses from her father as she said that she does not want to maintain relationship with him. The Court noted that the daughter who was aged 20 years of age was not intending to maintain ties with her father. The Court also noted that if that be the case, she can’t claim any amount from him for marriage and education.
To start with, this learned, laudable, landmark and latest judgment authored by a Bench of Apex Court comprising of Justice Sanjay Kishan Kaul and Justice MM Sundresh sets the ball rolling by first and foremost putting forth in para 1 that, “A marriage was solemnized inter-se the parties on 29.4.1998 at Rohtak as per Hindu rites, the parties resided together and the marriage was consummated. A daughter named Jyotsana was born on 20.2.2001. It is the case of the appellant that the respondent has been residing not with the appellant but in her father’s home after he passed away on 8.12.2002. A panchayat was convened on two separate occasions but it is the case of the appellant that the respondent refused to live with him in Ganaur. The appellant thus filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 but the same was dismissed on default on 07.10.2004.”
Simply put, the Bench then states that, “We may note the case of the respondent was that the appellant had thrown her out of the matrimonial home in October 2004 after assaulting her. There was a demand of dowry by the appellant and her family, and she was harassed and tortured. The daughter has been throughout living with the respondent since birth, and thus the divorce petition.”
As we see, the Bench then brings out that, “The aforesaid respective stands are reflected from the pleadings of the parties in a divorce petition filed by the appellant under Section 13 of Hindu Marriage Act, 1955 on grounds of desertion. The petition was tried. The learned Addl. District Judge, Sonipat found that no reconsideration was possible and there was no documentary or other evidence to prove the dowry demand.”
As it turned out, the Bench then points out that, “The respondent aggrieved by the same preferred an appeal before the High Court which has been allowed by the impugned judgment dated 08.9.2009. On the appellant preferring the special leave petition, notice was issued and endeavor was made to resolve the dispute between the parties through Delhi Mediation Center in 2011 but nothing worked out and leave was granted on 04.7.2011.”
Needless to say, the Bench then states that, “On the appeal being taken up for hearing on 28.9.2021, learned counsel for the parties stated that the parties are staying separately since 2002/ 2004 and that the parties will endeavor to work out a settlement and thus sought deferment of hearing.”
To put things in perspective, the Bench then envisages that, “On 05.10.2021, learned counsel for the respondent reported back stating that he had instructions that the respondent was not averse to a mutual consent divorce with the Court invoking its powers under Article 142 of the Constitution of India, without admitting the allegations made by the appellant while filing the divorce petition. We, however, put two caveats to it:
(a) the maintenance for the last 10 months fixed by the trial Court of Rs.8,000/- per month has not been paid.
(b) the sole child-daughter, has got admission to a college and the appellant must bear expenses for her education.”
Truth be told, the Bench then points out that, “Learned counsel for the appellant assured that the arrears would be cleared and also agreed to submit his salary bills along with an affidavit setting out his assets which he owns privately, apart from his salary slip, to work out the financial terms of the separation. The respondent was also asked to do the same. We flagged the issue of financial emoluments to be received by the respondent and the issue of the daughter’s education and marriage. In order to develop and encourage a rapport between the daughter who is 20 years of age and the appellant, we requested learned counsel for the respondent to arrange a meeting between the two in the meantime.”
Furthermore, the Bench then mentions that, “On the next date of hearing, i.e. 27.10.2021, we referred the matter to the Supreme Court Mediation Center to work out a formal settlement and for the daughter to join the mediation proceedings.”
Quite significantly, the Bench then pointed out that, “The mediation report, however, came from the Mediator of an unsuccessful endeavor, as recorded by us on 07.12.2021. We had observed that the daughter, who is now aged about 20 years, would have to develop some interaction with the appellant-father if she wants him to play a role in her education. At the request of parties the matter was again referred to mediation but the report was one of failure and as per the learned counsel for the appellant, it became acrimonious and unpleasant in terms of the telephonic conversations, as recorded in our order dated 22.2.2022. We, thus, directed the matter to be put on the regular board in the week commencing 08.3.2022.”
Be it noted, the Bench then remarks that, “None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent.”
In hindsight, the Bench then candidly concedes that, “We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process.”
It is worth noting that the Bench then observes that, “We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate.”
Most significantly, what forms the real cornerstone of this learned judgment is then stated holding thus that, “In so far as the daughter’s expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.”
It deserves to be mentioned that the Bench then clearly states that, “In view of the aforesaid factual matrix, we consider it appropriate to fix the permanent alimony of the respondent, at present being paid at Rs.8,000/- per month as interim maintenance, at Rs.10,00,000/- in full and final settlement of all claims. The amount be deposited in this Court within two months from today and would be released to the respondent. If the amount is not sought for a period of one month from the date of deposit, it will be kept in FDR earning interest for a period of 91 days to be kept renewed.”
Quite ostensibly, the Bench then finds no difficulty in holding that, “In the conspectus of the aforesaid, we grant decree of divorce on account of irretrievable breakdown of marriage between the parties exercising our jurisdiction under Article 142 of the Constitution of India, subject to the deposit of costs of Rs.10,00,000/- by the appellant. A decree of divorce be accordingly drawn up and be released to the appellant on the deposit of the amount.”
Finally, the Bench then concludes by holding that, “Civil appeal stands allowed, leaving parties to bear their own costs.”
To conclude, this brief, balanced and bold judgment by the Apex Court comprising of Bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh has sent a loud and clear message to all major daughters who seek maintenance from their fathers that they are not entitled to education expenses from father if they don’t want to maintain any relationship with their father. All major daughters must always now bear this into account and then approach the court with clean hands. This is what forms the essence of this notable judgment!
Sanjeev Sirohi, Advocate
Most significantly, what forms the real cornerstone of this learned judgment is then stated holding thus that, “In so far as the daughter’s expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.”