LAW FOR ALL

Application of law - Misapplication of Law -Non Application of Law - High court misapplied the law to the set of facts and as such liable to be set aside. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Apex court held that in cases where there has been a long period of continuous separation and the marriage becomes a fiction it would be appropriate to dissolve such marriage. On the position of law enunciated it would not be necessary to advert indetail inasmuch as the decision to dissolve the marriageapart from the grounds available, will have to be taken oncase to case basis and there cannot be a strait jacket formula. This Court can in any event exercise the power under Article 142 of the Constitution of India in appropriate cases. However, in the instant facts, having given our thoughtful consideration to that aspect we notice that the parties hail from a conservative background where divorce is considered a taboo and further they have a female child born on 03.01.2007 who is presently aged about 13 years. In a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear andtear of marital life, the future of the child and her marital prospects are also to be kept in view, and in such circumstance the dissolution of marriage merely becausethey have been litigating and they have been residingseparately for quite some time would not be justified inthe present facts, more particularly when the restitution of conjugal rights was also considered simultaneously. In that view, having arrived at the conclusion that the very nature of the substantial questions of law framed by the High Court is not justified and the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside 2020 [3]advocatemmmohan apex court cases 16