SANGHAMITRA GHOSH versus KAJAL KUMAR GHOSH

Citation: [2006] SUPP. 9 S.C.R. 156 · Decided: 20-11-2006 · Supreme Court of India · Bench: G.P. MATHUR · Disposal: Disposed off

Judgment (excerpt)

A 
B 
c 
SANGHAMITRA GHOSH 
v. 
KAJAL KUMAR GHOSH 
NOVEMBER 20, 2006 
[G.P. MA THUR AND DAL VEER BHANDARI, JJ.] 
Hindu law: 
Hindu Marriage Act, 1955; Section 9: 
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 of salvage-
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 
F 
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. 
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 
circumstances of this case, it is appropriate to exercise the jurisdiction of 
this Court under Article 142 of the Constitution. (165-C-D) 
E 
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 defun

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