Rai University Vs. State of Chhattisgarh & Ors.

CASE NO.:
Special Leave Petition (civil)  10506 of 2005

PETITIONER:
Rai University                       

RESPONDENT:
State of Chhattisgarh & Ors.

DATE OF JUDGMENT: 07/09/2005

BENCH:
CJI R.C. Lahoti,G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:
JUDGMENT
With

Writ Petition (Civil) No.267 of 2005,

With

IAs No.11-12, 8, 9, 14, 15, 16, 17, 18, 19 and 22 of 2005
In
Writ Petition (Civil) No.19 of 2004

And
Special Leave Petition (Civil) No.16520 of 2005.

G.P. MATHUR, J.

Special Leave Petition (Civil) No. 10506 of 2005

1.    This Special Leave Petition has been preferred against the judgment
and order dated 26.4.2005 of High Court of Chhattisgarh by which Writ
Petition No.1506 of 2005 filed by the petitioner, Rai University, was
dismissed. 

2.    The provisions of The Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short "the Act") were
challenged by Prof. Yashpal by filing a writ petition under Article 32 of the
Constitution in this Court.   The writ petition was allowed by this Court on
11.2.2005 and the judgment delivered is reported in JT 2005 (2) SC 165
(Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors.).   Paragraphs 45 and
46 of the reports, which have a bearing on the controversy in hand, are
reproduced hereinbelow :
"45.    As a consequence of the discussion made and the
findings recorded that the provisions of Sections 5 and 6 of the
Act are ultra vires and the Gazette Notifications notifying the
Universities are liable to be quashed, all such Universities shall
cease to exist.   Shri Amarendra Sharan, learned Additional
Solicitor General has submitted that the UGC had conducted an
inquiry and it was found that most of the Universities were non-
existent, but the report was not placed before the Court as the
complete exercise had not been done.   Learned counsel for the
Universities have seriously disputed this fact and have
submitted that the Universities are functioning.   We have not
gone into this question as it is purely factual.  In order to protect
the interest of the students who may be actually studying in the
institutions established by such private Universities, it is
directed that the State Government may take appropriate
measures to have such institutions affiliated to the already
existing State Universities in Chhattisgarh.   We are issuing this
direction keeping in mind the interest of the students and also
Sections 33 and 34 of the Act, which contemplate dissolution of
the sponsoring body and liquidation of a University whereunder
responsibility has to be assumed by the State Government.   It
is, however, made clear that the benefit of affiliation of an
institution shall be extended only if it fulfills the requisite
norms and standards laid down for such purpose and not to
every kind of institution.   Regarding technical, medical or
dental colleges, etc. affiliation may be accorded if they have
been established after fulfilling the prescribed criteria laid down
by the All India Council of Technical Education, Medical
Council of India, Dental Council of India or any other statutory
authority and with their approval or sanction as prescribed by
law.  

46.    In view of the discussions made above, Writ Petition (C)
No.19 of 2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh &
Ors.) and Writ Petition (C) No.565 of 2003 (Gopalji Agarwal
Vs. Union of India & Ors.) are allowed and provisions of
Section 5 and 6 of the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002
are declared  to be ultra vires and are struck down.   As a
consequence of such declaration, all notifications issued by the
State Government in the Gazette in the purported exercise of
power under Section 5 of the aforesaid Act notifying the
Universities (including respondent nos.3 to 94) are quashed and
such Universities shall cease to exist.  If any institutions have
been established by such Universities, steps may be taken for
their affiliation to already existing State Universities in
accordance with the direction contained in paragraph 45 above.  
Parties would be at liberty to approach the High Court if any
dispute arises in implementation of this direction. All Writ
Petitions, Civil Appeals and Transferred Cases filed by the
private Universities are dismissed."


4.    Thereafter, the State of Chhattisgarh made Statute No.27(A) in
accordance with the provisions of Section 36 of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973.   Clause (5) of Statute 27(A) of the
Statute reads as under :
"Notwithstanding anything contained in the Statutes,
Ordinances and Regulations made by any of the Existing State
University (ESU) under the provisions of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973 (No.22 of 1973), an Interim
Institution will be admitted to the privileges of the ESU on the
basis of the territorial jurisdiction of ESU for affiliation, as
specified in Second Schedule of the above said Act on
application of the Sponsoring Body of the Interim Institution
and the same shall be withdrawn thereof in the manner in the
paras mentioned hereinafter."

5.    Rai University, which had been established under the provisions of
the Act,  filed the writ petition before the Chhattisgarh High Court
challenging the provisions of Statute 27(A)(5) on the grounds, inter alia, that
the said University had established 19 study centres in various places in the
country like Pathankot, Delhi, Pune, Bangalore, Kochi, Mumbai, etc. and in
view of the aforesaid Statute, which lays emphasis on the territorial
jurisdiction of the university, the said study centres cannot get the advantage
of affiliation to a university in Chhattisgarh.  The writ petition was dismissed
by the order dated 26.4.2005 which is under challenge in the present special
leave petition. 

6.    Learned counsel for the petitioner has submitted that in paragraphs 45
and 46 of the judgment rendered in the case of Prof. Yashpal (supra), this
Court had protected the interest of the students who were studying in the
institutions established by the private universities and as large number of
students were studying in various study centres of Rai University, which are
outside the State of Chhattisgarh, they cannot get affiliation to a State
university in Chhattisgarh.  The submission is that all the study centres of
erstwhile private university should get the facility of affiliation to a State
university in Chhattisgarh.

7.    In our opinion, the contention raised cannot be accepted.   Sub-section
(1) of Section 7 of Chhattisgarh Vishwavidyalaya Adhiniyam, 1973 reads as
under :
"7(1)    Save as otherwise provided in this Act, the powers
conferred on the University by or under this Act shall not
extend beyond the limits of the territorial jurisdiction specified
in the Second Schedule from time to time.

Provided that the State Government may authorize the
University to associate or to admit to any of its privileges
colleges situated within the state outside the aforesaid limits in
accordance with the provisions of this Act and the Statutes
made thereunder.

Provided further that where the University provides for
instruction through correspondence nothing contained in this
section shall be construed to debar the University from
admitting to such course of instructions students residing
outside the aforesaid limits.

Provided also that for imparting Oriental Sanskrit
education any Sanskrit College imparting Oriental Sanskrit
education in Madhya Pradesh shall be affiliated either to Pt.
Ravishankar Shukla University, Raipur or any other University
which the State Government may notify."


8.    The Second Schedule to the Act gives the territorial jurisdiction of Pt.
Ravishankar Shukla Vishwavidyalaya, Raipur, and Guru Ghasidas
Vishwavidyalaya, Bilaspur, which are the two State universities functioning
in Chhattisgarh.    The territorial jurisdiction of these universities is confined
to districts which are within the State of Chhattisgarh.  In view of this clear
provision of the Adhiniyam, no statute can be made which may permit
affiliation of any institution or college to a State university in Chhattisgarh if
the said institution or college is situate outside the State of Chhattisgarh. 
The validity of the impugned statute, therefore, cannot be assailed on the
ground urged by learned counsel for the petitioner. 

9.    Learned counsel for the petitioner has submitted that if the study
centres make an application seeking affiliation to a university which has
territorial jurisdiction over the place where the study centre is situate, the
same may not be granted in view of the direction given by this Court in
paragraph 45 of the judgment which has been reproduced above and in this
connection he has referred to the following sentence occurring therein :

"In order to protect the interest of the students who may be
actually studying in the institutions established by such private
Universities, it is directed that the State Government may take
appropriate measures to have such institutions affiliated to the
already existing State Universities in Chhattisgarh."

10.    At the time of hearing of the writ petition filed by Prof. Yashpal, it
was not brought to the notice of the Court that the private universities had
established large number of study centres at various places all over the
country.  We, therefore, consider it proper to clarify that while making the
aforesaid observation, it was not meant that affiliation must necessarily be
sought only with an already existing State university in Chhattisgarh.  The
institutions of the erstwhile private universities, if otherwise eligible, may
apply and seek affiliation with any other university which has jurisdiction
over the area where the institution is functioning and is empowered under
the relevant Rules and Regulations and other provisions of law applicable to
the said university to grant affiliation.  The decision on the application may
be taken expeditiously in the interest of student community and there should
be no prolonged uncertainty about their future.   

11.    It may also be mentioned here that Prof. P.C. Upadhyay, Chairman of
Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory Commission had
sent a letter on 23rd March, 2005 to the sponsoring body of an erstwhile
university, wherein the following decision of the Government of
Chhattisgarh was communicated :


"As you are the Chairman of the Sponsoring Body of one of the
Universities mentioned above, it is our duty to inform you, that
in case you are running any off campus/study centre in or
around Delhi in the NCR, you may immediately approach the
Guru Gobind Singh Indraprastha University, Delhi for granting
affiliation, to such off campus/study centre, so as to ensure that
the students are no longer subjected to avoidable anxiety and
uncertainty.  

Further, please note that for completion of any formalities by
UGC, AICTE, etc. you must start action likewise.

Also, for other off campuses or study centres outside
Chhattisgarh for grant of affiliation, you may approach the
University of the State where they are located, in the light of the
Supreme Court judgment as well as the statement of the HRD
Minister.  In case of any difficulties, please send us the
communication for taking up the matter with UGC and related
bodies."

    The study centres of erstwhile Rai University which are outside the
State of Chhattisgarh may take appropriate steps for their affiliation in the
light of the clarification made above and the letter dated 23rd March, 2005 of
the Chairman of Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory
Commission.

12.    We, therefore, find no merit in this special leave petition, which is
hereby dismissed.    All the IAs moved in this petition are also dismissed.


Special Leave Petition (Civil) No. 16520 of 2005

Erstwhile Mewar University                ... Petitioner
        Versus
State of Chhattisgarh & Ors.                ... Respondents

    This special leave petition has been filed challenging the judgment
and order dated 22.7.2005 of the High Court of Chhattisgarh by which Writ
Petition No.2954 of 2005 filed by erstwhile Mewar University has been 
dismissed.    The petitioner has challenged the vires of clause 5 of Statute
No.27(A) enacted by the State of Chhattisgarh in accordance with the
provisions of Section 36 of the Chhattisgarh Vishwavidyalaya Adhiniyam
1973.  
    For the reasons given in Special Leave Petition (Civil) No.10506 of
2005, this special leave petition is dismissed.   All the IAs moved in this
petition are also dismissed.
WRIT PETITION (CIVIL) NO.19 OF 2004

Prof. Yashpal & Anr.                        Petitioners
    Versus
State of Chhattisgarh & Ors.                 Respondents
I.A. Nos.11-12 of 2005
    These applications have been moved seeking clarification of the
direction contained in paragraphs 45 and 46 of the judgment and for giving
appropriate directions in order to protect the students studying in study
centres established outside the State of Chhattisgarh. The necessary
clarification has been given in Special Leave Petition (Civil) No.10506 of
2005 and no further clarification is required.   The IAs are disposed of
accordingly.

I.A. No.8 of 2005
    The prayer made in this application is that the State Government may
be directed to take appropriate steps to notify certain institutions as
universities keeping in view the fact that such institutions have already been
inspected by the UGC.   Since the Act itself has been declared to be ultra
vires and a direction has been issued by this Court in Writ Petition (Civil)
No.19 of 2004 that all universities shall cease to exist, the prayer made in
this application cannot be granted.  It is accordingly rejected. 

I.A. No.14 of 2005
    This application has been moved by erstwhile Mewar University,
which was a private university.  The applicant claims that it is running two
institutes; one in Ghaziabad (State of U.P.) and the other at Chittorgarh
(State of Rajasthan).  The principal prayer made is that a direction be issued
to the State Government of Chhattisgarh to ensure the affiliation of the
students, who are studying in the aforesaid institutes.   Having regard to the
fact that the institutes are located outside the State of Chhattisgarh, no such
direction can be issued to the State of Chhattisgarh.  It is open to the
institutes, if otherwise eligible, to seek affiliation with any other university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation.  If the applicant feels aggrieved by the decision taken by the
University or any other authority, it is open to it to challenge the same before
the appropriate forum in accordance with law. The application is accordingly
rejected.

I.A. No.22 of 2005
    This application has been moved by 11 students who claim to be
studying in Ghaziabad and Chittorgarh institutes of erstwhile Mewar
Univeristy.  The prayer made is that a direction be issued to affiliate the
institutes to a university in the State of Chhattisgarh.   For the reasons
already given in Special Leave Petition (Civil) No.10506 of 2005, such a
prayer cannot be granted. 

In the alternative, a prayer has been  made that a direction be issued to
affiliate the institutes with Chaudhary Charan Singh University, Meerut
and/or U.P. Technical University, Lucknow or Mohan Lal Sukhadia
University, Udaipur.  The applicants were not party to the writ petition.  It is
for the institutes to make appropriate application to the concerned university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation.  The application is accordingly rejected.

I.A. No.15 of 2005
    This application has been moved by erstwhile Jaipuria University
(Respondent No.42 to the writ petition) praying that AICTE and UP
Technical University be directed to grant one time approval and affiliation 
for the 22 students who have been pursuing a full time regular course of
study of the prescribed syllabus for MBA, meeting the standards set down
by the AICTE and have also appeared in the 1st year examination conducted
by the U.P. Technical University.   Learned counsel has submitted that
Jaipuria University is running an institute for imparting MBA degree in
Noida, which is affiliated to U.P. Technical University and 60 students are
studying there.   The notification establishing the Jaipuria University was
issued on 6.9.2003 and thereafter 22 students were admitted for MBA course
in the said university.  After the decision in the case of Prof. Yashpal
(supra), the university ceased to exist.   As a result, the said 22 students are
facing problem regarding continuance of their M.B.A. course.   The record
shows that an application was given to the Vice-Chancellor, U.P. Technical
University seeking affiliation regarding those 22 students.  However, vide
letter dated 19.6.2005 of the Registrar of U.P. Technical University, it was
informed that the affiliation was not found justifiable by the Chancellor of
the university.  In our opinion, the relief sought cannot be granted in an
application moved in an already decided writ petition on entirely new facts
pleaded for the first time.  The application is accordingly rejected.

I.A. No.18 of 2005
    This application has been moved by a student who claims to have
been studying in the Mumbai Campus of the erstwhile Rai University and
the prayer made is that a direction be given to either affiliate the Off Campus
to Chhattisgarh University or to Mumbai University or to any other
university in Maharashtra.   For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, it is not possible to grant the first prayer regarding
affiliation with a University in Chhattisgarh. 

Learned counsel has submitted that there are two enactments, namely,
Maharashtra Educational Institutions (Transfer of Management) Act, 1971
and Maharashtra Educational Institutions (Management) Act, 1976, which
empower the State Government to appoint Administrator over an
educational institution and having regard to the fact that Rai University has
ceased to exist, some direction should be issued to the Government of
Maharashtra to protect the interest of the students.   In our opinion, it will
not be proper for us to issue any direction as prayed for by the learned
counsel for the applicant as the State of Maharashtra was not a party to the
writ petition.   It is always open to the applicant or any other student to
approach the State Government for appropriate relief.   The application is
accordingly rejected.  

I.A. No.19 of 2005
    This application has been moved by certain students of erstwhile
ICFAI University (respondent no.73 to the writ petition), who claim to have
been studying in a five-year law course.  The first prayer made in the
application is that a clarification may be issued that the direction contained
in paragraphs 45 and 46 of the judgment would apply to all the existing
students who are studying in the Off Campus law school of erstwhile ICFAI
University at Hyderabad. For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, such a prayer cannot be granted.

In the alternative, learned counsel has submitted that the law school of
erstwhile ICFAI University may be affiliated to any university in Andhra
Pradesh.  It is not possible to issue such a direction as the State of Andhra
Pradesh or any university in the said State were not even a party to the writ
petition.   It is always open to the law school to move an appropriate
application seeking affiliation to a University which has jurisdiction and is
empowered under the relevant Rules and Regulations and other provisions
of law applicable to the said university.  The application is accordingly
dismissed. 

I.A. Nos. 9, 16 and 17 of 2005

    In view of the orders passed in the aforesaid IAs, no order needs to be
passed in these IAs.   The same are accordingly disposed of.

Civil Writ Petition No.267 of 2005
Divya Tiwari & Ors.                         ... Petitioners
    Versus
State of Chhattisgarh & Ors.                    ... Respondents


    This petition under Article 32 of the Constitution of India has been
filed by three petitioners who claim to be students of an Off Campus of an
erstwhile private university known as SRI University, which is situate in
Akbarpur, District Ambedkar Nagar in the State of U.P.   The prayer made
in the writ petition is that a writ of mandamus be issued directing the
University and the Off Campus to hold their examination.  

    In view of the decision in the case of Prof. Yashpal (supra), the
University has ceased to exist and the Off Campus being outside the State of
Chhattisgarh, no relief can be granted.   The writ petition is accordingly
dismissed.

Satish Jaggi Vs. State of Chhattisgarh & Ors

CASE NO.:
Appeal (crl.)  241 of 2007

PETITIONER:
Satish Jaggi

RESPONDENT:
State of Chhattisgarh & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH:
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P (Crl.) No. 6154 of 2006)



Dr. ARIJIT PASAYAT, J.



    Leave granted.


Challenge in this appeal is to the order passed by a
learned Single Judge of the Chhattisgarh High Court
dismissing the transfer petition filed under Section 407 of the
Code of Criminal Procedure, 1973 (for short 'the Code') for
transferring of Sessions Trial no.329/2005 (State through CBI
v. Amit Jogi and 30 others), pending in the Court of Sessions
Judge, Raipur, Chhattisgarh to some other Court. The transfer
was sought for primarily on the ground that the Sessions
Judge before whom the trial was pending is the elder brother
of a sitting MLA who is very close to the father of respondent
no.3, one of the main accused persons. It was alleged that the
father of respondent no. 3 was the previous Chief Minister of
the state and that he and the brother of the Learned Sessions
Judge belong to the same political party. It was further stated
that the said MLA was very close to the father of respondent
no.3 who was earlier the Chief Minister of the State. 
Therefore, according to the appellant, he was under a bona
fide and genuine apprehension that he will not get justice if
the trial is conducted and concluded by the present Sessions
Judge.  It was also stated that the major part of the trial was
conducted by the third Additional Sessions Judge, Raipur. By
order dated 21.6.2006 the case was transferred to the Court of
the Session Judge, Raipur (Shri R. S. Sharma) who examined
four prosecution witnesses and 21 defence witnesses. At that
stage, Shri R. S. Sharma was transferred as Sessions Judge,
Janigir- Champa and Shri Sanman Singh was posted in his
place as the Sessions Judge. Therefore, prayer was made to
transfer to the Court of Sessions Judge, Janigir-Champa,
where the previous Sessions Judge was posted so that he
could conclude the trial by camping at Raipur for that
purpose.  The High Court held that assurance of fair trial is
imperative for the dispensing of justice and the primary
consideration for the Court is to consider whether a motion of
transfer is made out and the High Court is not required to lay
stress on hypersensitivity or relative convenience of a party. 
The High Court felt that the grounds set forth by the appellant
seeking transfer cannot be considered to be sufficient to direct
transfer. Merely because the brother of the trial Judge was a
sitting MLA, that cannot be a ground to prima facie come to a
conclusion that there would be pressure through either by the
brother or father of the accused who was supposed to be close
to his brother.  It was further noted that the trial is at a final
stage and about 150 prosecution witnesses and all the defence
witnesses have been examined and what remains to be done is
to hear the arguments and pass the judgment.  Therefore, the
prayer was rejected.

Learned counsel for the appellant submitted that
ultimately administration of justice rests on many principles
and one of the fundamental principles is that justice should
not only be done but it should be seen to be done.  The
present case is not one where a mere allegation is made. 
There is no dispute that the brother of the present Sessions
Judge is a sitting MLA belonging to a particular party of which
respondent no.3's father was earlier the leader and the Chief
Minister.

Mr. K.K. Venugopal,  learned senior advocate, appearing
for some of the respondents submitted that if the allegation is
accepted it would be doubting the impartiality of the present
Sessions Judge.  There is no material to show that the Judge
has any bias or any partisan attitude. The fortuitous
circumstances that his brother is an MLA cannot be a factor to
doubt the judicial discipline of the Sessions Judge.

The law with regard to transfer of cases is well settled.
This Court in the matter of Gurcharan Dass Chadha v. State
of Rajasthan (AIR 1966 SC 1418) held that a case is
transferred if there is a reasonable apprehension on the part of
a party to a case that justice will not be done. This Court said
that a petitioner is not required to demonstrate that justice
will inevitably fail.  He is entitled to a transfer if he shows
circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the
circumstances alleged.  This Court further held that it is one
of the principles of the administration of justice that justice
should not be done but it should be seen to be done. The court
has further to see whether the apprehension is reasonable or
not.  This Court also said that to judge the reasonableness of
the apprehension, the state of the mind of the person who
entertains the apprehension is no doubt relevant but that is
not all.  The apprehension must not only be entertained, but
must appear to the court to be a reasonable apprehension.

It was further held by this Court in Mrs. Maneka Sanjay
Gandhi and Anr. V. Miss Rani Jethmalani (AIR 1979 SC 468)
that assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court
to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or
availability of legal services or any like grievance.  Something
more substantial, more compelling, more imperiling, from the
point of view of public justice and its attendant environment,
is necessitous if the court is to exercise its power of transfer. 
This is the cardinal principle although the circumstances may
be myriad and vary from case to case.  This Court, in the facts
and circumstances of the case, said that the grounds for the
transfer have to be tested on this touchstone bearing in mind
the rule that normally the complainant has the right to choose
any Court having jurisdiction and the accused cannot dictate
where the case against him should be tried.  It further said
that even so, the process of justice should not harass the
parties and from that angle the court may weigh the
circumstances.


In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000
SC 2293) this Court stated that the purpose of the criminal
trial is to dispense fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that public
confidence in the fairness of a trial would be seriously
undermined, any party can seek the transfer of a case within
the State under Section 407 and anywhere in the country
under Section 406 of the Code.  The apprehension of not
getting a fair and impartial inquiry or trial is required to be
reasonable and not imaginary based upon conjectures and
surmises. If it appears that the dispensation of criminal justice
is not possible impartially and objectively and without any
bias, before any Court or even at any place, the appropriate
Court may transfer the case to another Court where it feels
that holding of fair and proper trial is conducive. No universal
or hard and fast rules can be prescribed for deciding a transfer
petition which has always to be decided on the basis of the
facts of each case. Convenience of the parties including the
witnesses to be produced at the trial is also a relevant
consideration for deciding the transfer petition. The
convenience of the parties does not necessarily mean the
convenience of the petitioners alone who approached the court
on misconceived notions of apprehension. Convenience for the
purposes of transfer means the convenience of the
prosecution, other accused, if any, the witnesses and the
larger interest of the society.
 In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309)
this Court felt that where public confidence in the fairness of
the trial is likely to be seriously undermined under the
circumstances of the case, transfer petition could be allowed.
On finding that "there is uniformity of testimony from both
sides about the nature of surcharged communal tension in
that area," the Court found that the local atmosphere was not
conducive to a fair and impartial trial which was a good
ground for transfer. The court rejected the contention of the
petitioner therein regarding the wild allegations made to the
effect that no court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and
circumstances of the case, the trial was transferred to an
adjoining court. The mere existence of a surcharged
atmosphere without there being proof of inability for holding
fair and impartial trial cannot be made a ground for transfer of
a case. Alleged communally surcharged atmosphere has to be
considered in the light of the accusations made and the nature
of the crime committed by the accused seeking transfer of his
case. It will be unsafe to hold that as and when accusations
are made regarding the existence of a surcharged communal
atmosphere, the case should be transferred from the area
where existence of such surcharged atmosphere is alleged.


The position was also examined in Pal Singh and Anr. V.
Central Bureau of Investigation and Ors. (2005 (12) SCC 329).
In that case, considering the fact that large number of
witnesses had been examined and few more witnesses were
left to be examined, this Court set aside the order of the High
Court transferring the case from one Sessions Court to
another.  The High Court was, therefore, held to be not
justified in entertaining the petition for transfer. 

In this case, one thing which has to be kept in view is
that the Sessions Judge himself has not indicated his
disinclination to hear the matter. That is probably because he
believes that the mere fact that his brother is known to some
political heavyweight cannot stand in his way of discharging
judicial function impartially without fear and favour.  These
are the hallmarks of judicial system.  A judicial officer in
whatever capacity he may be functioning has to act with the
belief that he is not to be guided by any factor other than to
ensure that he shall render a free and fair decision which
according to his conscience is the right one on the basis of
materials placed before him.  There can be no exceptions to
this imperative, but at the same time there should not be any
scope given to any person to go away with the feeling that the
Judge was biased, however unfounded the impression may be.
The qualities desired of a Judge can be simply stated: "that if
he be a good one and that he be thought to be so". Such
credentials are not easily acquired. The Judge needs to have
"the strength to put an end to injustice" and "the faculties that
are demanded of the historian and the philosopher and the
prophet". A few paragraphs from the book "Judges" by David
Pannick which are often quoted need to be set out here:
"The Judge has burdensome responsibilities to
discharge. He has power over the lives and
livelihood of all those litigants who enter his
court.His decisions may well affect the
interests of individuals and groups who are not
present or represented in court. If he is not
careful, the judge may precipitate a civil war.
Or he may accelerate a revolution.He may
accidentally cause a peaceful but fundamental
change in the political complexion of the
country.

    xx        xx        xx        xx

Judges today face tribulations, as well as
trials, not contemplated by their
predecessors.Parliament has recognized the
pressures of the job by providing that before
the Lord Chancellor recommends anyone to
the Queen for appointment to the Circuit
Bench, the Lord Chancellor 'shall take steps to
satisfy himself that the person's health is
satisfactory'.. This seems essential in the
light of the reminiscences of Lord Roskill as to
the mental strain which the job can
impose.Lord Roskill added that, in his
experience, 'the workload is intolerable: seven
days a week, 14 hours a day'

    xx        xx        xx        xx

    He (judge) is a symbol of that strange
mixture of reality and illusion, democracy and
privilege, humbug and decency , the subtle
network of compromises, by which the nation
keeps itself in its familiar shape". (See Brij
Mohan Lal v. Union of India and Ors. (2002 (5)
SCC 1)

We are sure that the present Sessions Judge would have
acted in the true sense of a judicial officer. But nevertheless to
ensure that justice is not only done, but also seen to be done
and the peculiar facts of the case, we feel that it will be
appropriate if the High Court transfers the case to some other
Sessions Court in Raipur itself. We make it clear that the
transfer shall not be construed as casting any aspersion on
the Learned Sessions Judge. The Trial Court before whom the
trial is to continue should ensure that the trial is completed by
the end of May, 2007. Needless to say, the parties shall co-
operate in the completion of the trial within the said time.

The appeal is accordingly disposed of.

PARVEEN MEHTA Vs. INDERJIT MEHTA

CASE NO.:
Appeal (civil) 3930  of  2002



PETITIONER:
PARVEEN MEHTA

    Vs.

RESPONDENT:
INDERJIT MEHTA

DATE OF JUDGMENT:    11/07/2002

BENCH:
D.P. MOHAPATRA, BRIJESH KUMAR.




JUDGMENT:



D.P.MOHAPATRA,J.


        Leave granted.

        What is the meaning and import of the
expression 'cruelty' as a matrimonial offence is the core
question on the determination of which depends the result
and the fate of this case.

The appellant is the wife of the respondent.  They
were married according to Hindu rites and customs  on 6th
December, 1985.     The marriage was preceded by
negotiation between the two families, ring exchange
ceremony, etc.    A meeting between the boy and the girl was
also arranged at Yamuna Nagar in the State of Haryana.
After marriage the spouses stayed together at Panipat
where the respondent was posted as a Judicial Officer.
They lived together till 28th April, 1986 when they parted
company never to stay together again.  It is the case of the
respondent that right from the first day of the marriage he
sensed something abnormal with his wife; he was unable
to consummate the marriage as there was no cooperation
from the side of the wife for sexual intercourse.  Despite
several attempts cohabitation was not possible for lack of
cooperation on the part of the wife.  It is the further case of
the respondent that when he first met his wife when some
members of the two families met he had noticed that she
was looking  very frail and weak. When he wanted to know
the reason for such state of her health her father and other
relations told him that she had been undergoing a strict
diet control and had been making efforts to reduce her
w.eight

  On questioning his wife immediately after the
marriage the respondent could ascertain that she was
suffering from some ailment and she was under the
treatment of Vaid Amar Nath Sastry of Chandigarh. On
10th December, 1985 the respondent took his wife to see
Mr.Sastry at Chandigarh who informed him that father of
the girl was his close friend and he was already seized of
the problems of her health.  He gave some medicines to be
taken by her.  Thereafter they returned to Yamuna Nagar
where parents of the respondent were living. Subsequently,
the respondent took the appellant to Panipat where he was
posted and they started living there and continued with
the medicines.    In February, 1986 the appellant agreed to
be examined by    Dr.B.M.Nagpal of Civil Hospital, Panipat.
The doctor advised a thorough check up and diagnosis.
However, this was not possible since the appellant  did not
cooperate and ultimately gave out because she was not
interested in taking any medical treatment.

        The respondent further alleged that the state of
health of the appellant continued to deteriorate; she
continued to lose weight; she suffered from asthmatic
attacks; on account of her ailment her behavior became
quarrelsome; and  on trifle matters she threatened to leave
the matrimonial home.  It was further contended that
during her stay at Panipat when Surinder Singh Rao and
Virender Jain, friends of the respondent  visited his place,
the appellant refused to prepare tea and started
misbehaving with him in presence of the outsiders thereby
causing embarrassment to him.  Ultimately on 28th April,
1986 her brother and brother's wife came to Panipat and
took the appellant with them.    It was the further case of
the respondent that when the appellant was with her
parents several attempts were made by him offering to give
her the best possible medical treatment so that the
condition of her health may improve and both of them
could lead a happy married life.  All such attempts failed.
The offer of medical treatment was rejected and even
nature of the ailment suffered by her was not disclosed to
the respondent.

On one occasion when Shri S.K. Jain, a senior officer
of the Judicial Service, then the Legal Remembrancer of
Haryana and who later became a Judge of the High Court
was discussing the matter with the parties with a view to
bring about a settlement the appellant caught hold of the
shirt collar of the respondent and created an ugly and
embarrassing situation.     Again on 30th July 1986 the
appellant accompanied by a number of persons searched
for the respondent in the Court premises at Kaithal and
not finding him there forcibly entered his house and
threatened him.     A report about the incident was sent to
the superior officer of the respondent.     Alleging the
aforestated facts and circumstances the respondent filed
the petition in August, 1996 seeking dissolution of the
marriage on the grounds of cruelty and desertion.

    The appellant refuted the allegations made in the
petition.  She denied that her husband had been misled
regarding the state of her health before their marriage. She
alleged that the marriage was duly consummated and the
phera ceremony was performed; and that her husband had
been expressing full love and affection towards her. She
denied that she suffered from any serious ailment and had
been treated by Vaid Amar Nath Sastri. It was her case
that she had become pregnant from the wedlock but
unfortunately there was miscarriage.  It was the further
case of the appellant that the respondent and his parents
wanted to  pressurise    the appellant and her parents to
agree for a divorce by mutual consent.    On 21st June, 1987
when a meeting of relations of both sides took place at the
house of her mother's sister Smt.Parakash Kapur at
Yamuna Nagar the respondent  stated that the appellant
was too frail and weak; that she must be suffering from
some disease and therefore, he was not prepared to take
her back.  Thereafter several attempts were made by her
parents and other relations to persuade the respondent to
take the appellant to his house but such attempts were of
no avail on account of want of any response from the
respondent and his parents.

    On the pleadings of the parties, the Trial Court
framed the following issues :

"1)   Whether the respondent-wife has
deserted the petitioner, if so, its
effect? OPP

2)    Whether the respondent-wife is
guilty of cruelty, if so, its effect?
OPP

3)    Whether this petition is barred by
latches, in accordance with
Section 23(1a) and (d) of the Act?
OPP

4)    Relief."


Both the parties led evidence, both oral and
documentary, in support of their cases.     The Trial Court on
assessing the evidence on record, dismissed the petition
for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99
before the High Court assailing the judgment of the Trial
Court.    The appeal was allowed by the learned Single
Judge by the judgment rendered on 1st June, 2000.  The
learned Single Judge granted the prayer of the    respondent
for dissolution of the marriage on the ground of cruelty
and further held that as the marriage took place about 14
years ago and there was no child out of the wedlock it
would be in the interest of justice that the parties should
be separated from each other.  The operative portion of the
judgment is quoted hereunder :

"In view of the discussion as such the
only conclusion which can be arrived
at is that despite the fact that the
respondent is a good lady but has
created the aforesaid situation because
of her own act and conduct concerning
the non-disclosure of her state of
health and concealment by her above
acted as a mental and physical cruelty
to the appellant which entitles him to a
decree of divorce.  Therefore, the
findings of the learned District Judge
on issue Nos.1 to 3 are reversed.

    For the foregoing reasons, the
appeal is allowed, marriage between
the parties stands dissolved and a
decree of divorce on the grounds of
desertion and cruelty is hereby granted
in favour of the appellant (husband)
and against the respondent (wife).  In
the circumstances of the case, the
parties are left to bear their own costs.
However, it would be appropriate to
ask the husband not to remarry till
30.9.2000. Hence ordered accordingly."


    The wife, who is the appellant herein, filed an appeal
before the Division Bench,  Letters Patent Appeal No.1000
of 2000, assailing the judgment of the learned Single
Judge.    The Division Bench of the High Court by the
judgment rendered on 8th August, 2000  dismissed the
Letters Patent Appeal in limine.  The Division Bench held:
"Even otherwise, in the facts and circumstances of the
case in hand, in our view, it cannot be said that the
husband has tried to take advantage of any wrong on his
part.  Rather, he did make the best possible effort to
explore the possibility of detecting the deficiency or
disease, if any, and for treatment of poor health of his wife.
But, all in vain. We find no merit in the Letters Patent
Appeal.     It is, therefore, dismissed in limine."   The said
judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing
for the appellant contended that in the context of facts and
circumstances of the case the High Court has erred in
granting the prayer for divorce by the respondent on the
sole ground of cruelty.     He further contended that even
assuming that the spouses did not enjoy normal sexual
relationship with each other on account of frail health of
the appellant and there were heated exchanges between
the parties followed by     the appellant catching hold of shirt
collar of the husband, that is not sufficient to establish a
case of cruelty for the purpose of Section 13(1)(ia) of the
Act.  Shri Singh also contended that if the ground of
cruelty fails then the further ground stated in favour of the
decree of divorce that the marriage has irretrievably broken
down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel
appearing for the respondent strenuously contended that
in the facts and circumstances of the case the High Court
rightly recorded the finding of cruelty by the appellant
towards the respondent.     Elucidating the point Shri Sudhir
Chandra submitted that the respondent was kept in the
dark about the poor state of health of the appellant at the
time of the marriage negotiations despite the query made
by him about the reason for her frail and weak health.
After marriage when the respondent was prepared to
provide the best possible medical treatment to improve her
health neither the appellant nor her parents extended their
cooperation in the matter.  Further, the erratic and
impulsive behavior of the wife caused serious
embarrassment to the respondent before his friends and
colleagues.  The cumulative effect of all the aforesaid facts
and circumstances of the case, according to Shri Sudhir
Chandra, give rise to reasonable apprehension in the mind
of the respondent that it is not safe to continue
matrimonial relationship with the appellant. Thus a case of
cruelty for the purpose of Section 13(1)(ia) was made out. It
was the further contention of Shri Sudhir Chandra that
the respondent remarried in December, 2000, two years
after the judgment of the Single Judge and nearly four
months after the judgment of the Division Bench was
rendered.  In the facts and circumstances of the case,
urged Shri Sudhir Chandra, this is not a fit case for this
Court to interfere with the judgment and decree passed by
the High Court in exercise of its jurisdiction under Article
136 of the Constitution of India.

As noted earlier, the learned Single Judge granted
the respondent's prayer for dissolution of the marriage on
the ground of 'cruelty'.   Therefore, the question arises
whether in the facts and circumstances of the case a case
for divorce under Section 13(1)(ia) of the Hindu Marriage
Act,1955 (for short 'the Act') has been made out.  The
answer to this question depends on determination of the
question formulated earlier.  In Section 13(1) it is laid
down that :

"Divorce.- (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the
husband or the wife, be dissolved by a
decree of divorce on the ground that
the other party

xxx            xxx        xxx

(ia)    has, after the solemnization of
the marriage, treated the petitioner
with cruelty;"


Under the statutory provision cruelty includes both
physical and mental cruelty.  The legal conception of
cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined
under the Act. Probably, the Legislature has advisedly
refrained from making any attempt at giving a
comprehensive definition of the expression that may cover
all cases, realising the danger in making such attempt.
The accepted legal meaning in England as also in India of
this expression, which is rather difficult to define, had
been 'conduct of such character as to have caused danger
to life, limb or health (bodily or mental), or as to give rise to
a reasonable apprehension of such danger' (Russel v.
Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition,
Volume II page 87].  The provision in clause (ia) of Section
13(1), which was introduced by the Marriage Laws
(Amendment) Act 68 of 1976,    simply states that 'treated
the petitioner with cruelty'.  The object, it would seem, was
to give a definition exclusive or inclusive, which will amply
meet every particular act or conduct and not fail in some
circumstances. By the amendment the Legislature must,
therefore, be understood to have left to the courts to
determine on the facts and circumstances of each case
whether the conduct amounts to cruelty. This is just as
well since actions of men are so diverse and infinite that it
is almost impossible to expect a general definition which
could be exhaustive and not fail in some cases.     It seems
permissible, therefore, to enter a caveat against any
judicial attempt in that direction (Mulla Hindu Law, 17th
Eidition, Volume II, page 87).

    This Court in the case of Dastane vs. Dastane, AIR
1975 SC 1534, examined the matrimonial ground of
cruelty as it was stated in the old Section 10(1)(b) and
observed that any inquiry  covered by that provision had to
be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a
reasonable apprehension     that it will be harmful or
injurious to live with the respondent.     It was further
observed that it was not necessary, as under the English
law that the cruelty must be of such a character as to
cause danger to life, limb or health, or as to give rise to a
reasonable apprehension of such a danger though, of
course, harm or injury to health, reputation, the working
character or the like would be an important consideration
in determining whether the conduct of the respondent
amounts to cruelty or not.  In essence what must be taken
as fairly settled position is that though the clause does not
in terms say so it is abundantly clear that the application
of the rule must depend on the circumstances of each
case; that 'cruelty' contemplated is conduct of such type
that the petitioner cannot reasonably be expected to live
with the respondent. The treatment accorded to the
petitioner must be such as to  cause an apprehension in
the mind of the petitioner that cohabitation will be so
harmful or injurious that she or he cannot reasonably be
expected to live with the respondent having regard to the
circumstances of each case, keeping always in view the
character and condition of the parties, their status
environments and social values, as also the customs and
traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra
Pandey, (2002) 2 SCC 73, this Court construing the
question of 'cruelty' as a ground of divorce under Section
13(1)(ia) of the Act made the following observations :

"Treating the petitioner with cruelty is
a ground for divorce under Section
13(1)(i-a) of the Act.    Cruelty has not
been defined under the Act but in
relation to matrimonial matters it is
contemplated as a conduct of such
type which endangers the living of the
petitioner with the respondent.     Cruelty
consists of acts which are dangerous to
life, limb or health.  Cruelty for the
purpose of the Act means where one
spouse has so treated the other and
manifested such feelings towards her
or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering
or to have injured health.  Cruelty may
be physical or mental.    Mental cruelty
is the conduct of other spouse which
causes mental suffering or fear to the
matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of the
petitioner with such cruelty as to cause
a reasonable apprehension in his or
her mind that it would be harmful or
injurious for the petitioner to live with
the other party.  Cruelty, however, has
to be distinguished from the ordinary
wear and tear of family life.  It cannot
be decided on the basis of the
sensitivity of the petitioner and has to
be adjudged on the basis of the course
of conduct which would, in general, be
dangerous for a spouse to live with the
other.    In the instant case both the
trial court as well as the High Court
have found on facts that the wife had
failed to prove the allegations of cruelty
attributed to the respondent.
Concurrent findings of fact arrived at
by the courts cannot be disturbed by
this Court in exercise of powers under
Article 136 of the Constitution of India.
Otherwise also the averments made in
the petition and the evidence led in
support thereof clearly show that the
allegations, even if held to have been
proved, would only show the sensitivity
of the appellant with respect to the
conduct of the respondent which
cannot be termed more than ordinary
wear and tear of the family life."


This Court, construing the question of mentral
cruelty under Section 13(1)(ia) of the Act, in the case of
G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296,
observed :

"The court has to come to a conclusion
whether the acts committed by the
counter-petitioner amount to cruelty,
and it is to be assessed having regard
to the status of the parties in social
life, their customs, traditions and other
similar circumstances.    Having regard
to the sanctity and importance of
marriages in a community life, the
court should consider whether the
conduct of the counter-petitioner is
such that it has become intolerable for
the petitioner to suffer any longer and
to live together is impossible, and then
only the court can find that there is
cruelty on the part of the counter-
petitioner.  This is to be judged not
from a solitary incident, but on an
overall consideration of all relevant
circumstances."


Quoting with approval the following passage from the
judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337,
this Court observed  therein:
"Mental cruelty in Section 13(1)(i-a)
can broadly be defined as that conduct
which inflicts upon the other party
such mental pain and suffering as
would make it not possible for that
party to live with the other.  In other
words, mental cruelty must be of such
a nature that the parties cannot
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with the other party.    It
is not necessary to prove that the
mental cruelty is such as to cause
injury to the health of the petitioner.
While arriving at such conclusion,
regard must be had to the social
status, educational level of the parties,
the society they move in, the possibility
or otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither
possible nor desirable to set out
exhaustively.  What is cruelty in one
case may not amount to cruelty in
another case.  It is a matter to be
determined in each case having regard
to the facts and circumstances of that
case.  If it is a case of accusations and
allegations, regard must also be had to
the context in which they were made".


    Clause (ia) of sub-Section (1) of Section 13 of the Act
is comprehensive enough to include cases of physical as
also mental cruelty.  It was formerly thought that actual
physical harm or reasonable apprehension of it was the
prime ingredient of this matrimonial offence.  That doctrine
is now repudiated and the modern view has been that
mental cruelty can cause even more grievous injury and
create in the mind of the injured spouse reasonable
apprehension that it will be harmful or unsafe to live with
the other party.  The principle that cruelty may be inferred
from the whole facts and matrimonial relations of the
parties and interaction in their daily life disclosed by the
evidence is of greater cogency in cases falling under the
head of mental cruelty. Thus mental cruelty has to be
established from the facts (Mulla Hindu Law, 17th Edition,
Volume II, page 91).

    In the case in hand the foundation of the case of
'cruelty' as a matrimonial offence is based on the
allegations made by the husband that right from the day
one after marriage the wife was not prepared to cooperate
with him in having sexual intercourse on account of which
the marriage could not be consummated.    When the
husband offered to have the wife treated medically she
refused. As the condition of her health deteriorated she
became irritating and unreasonable in her behaviour
towards the husband.   She misbehaved with his friends
and relations.      She even abused him, scolded him and
caught hold of his shirt collar in presence of elderly
persons like Shri S.K.Jain.  This Court in the case of
Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex
plays an important role in marital life and cannot be
separated from other factors which lend to matrimony a
sense of fruition and fulfillment".

Cruelty for the purpose of Section 13(1)(ia) is to be
taken as a behavior by one spouse towards the other
which causes reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue  the
matrimonial relationship with the other.  Mental cruelty is
a state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other.  Unlike the
case of physical cruelty the mental cruelty is difficult to
establish by direct evidence.  It is necessarily a matter of
inference to be drawn from the facts and circumstances of
the case.  A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the
other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of
matrimonial life have been living.  The inference has to be
drawn    from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of     misbehavior in
isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of
the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above
what we find is that right from the beginning the
matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the
respondent had been trying to persuade the appellant and
her parents to agree to go for proper medical treatment to
improve her health so that the parties may lead a normal
sexual life; all such attempts proved futile.  The appellant
even refused to subject herself to medical test as advised
by the doctor.    After 21st June, 1987 she stayed away from
the matrimonial home and the respondent was deprived of
her company.  In such circumstances, the respondent who
was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal
cohabitation that every married person expects to enjoy
and also social embarrassment due to the behavior of the
appellant.  Further, the conduct of the appellant in
approaching the police complaining against her husband
and his parents and in not accepting the advice of the
superior judicial officer Mr.S.K.Jain and taking a false plea
in the case that she had conceived but unfortunately there
was miscarriage are bound to cause a sense of mental
depression in    the respondent.     The cumulative effect of all
these on the mind of the respondent, in our considered
view, amounts to mental cruelty caused due to the
stubborn attitude and inexplicably unreasonable conduct
of the appellant.

The learned Single Judge in his judgment has
discussed the evidence in detail and has based his findings
on such discussions.  In the Letters Patent Appeal  the
Division Bench on consideration of the facts and
circumstances of the case  agreed with the findings
recorded by the learned Single Judge.     In the context of
the facts and circumstances on record we are of the view
that the learned Single Judge rightly came to the
conclusion that the prayer of the respondent for
dissolution of the marriage on the ground of cruelty under
Section 13(1)(ia) of the Act was acceptable.  Therefore, the
Division Bench committed no error in upholding the
judgment of the learned Single Judge.

As noted earlier the parties were married on 6th
December,  1985. They stayed together for a short period
till 28th April 1986 when they parted company.    Despite
several attempts by relatives and well-wishers    no
conciliation between them was possible.     The petition for
the dissolution of the marriage     was filed in the year 1996.
In the meantime so many years have elapsed since the
spouses parted company.     In these circumstances it can be
reasonably inferred that the marriage between the parties
has broken down irretrievably without any fault on the
part of the respondent. Further the respondent has re-
married in the year 2000.  On this ground also the
decision of the High Court in favour of the respondent's
prayer for dissolution of the marriage should not be
disturbed.  Accordingly this appeal fails and is dismissed.
There will, however, be no order for costs