Madhya Pradesh High Court
Abhishek Vyas vs Smt. Monika Vyas on 11 May, 2022
Author: Anil Verma
Bench: Anil Verma
-1-
Civil Revision No.96 of 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 11th OF MAY, 2022
CIVIL REVISION No. 96 of 2022
Between:-
ABHISHEK VYAS S/O SHRI NARENDRA VYAS,
AGED ABOUT 32 YEARS,
OCCUPATION: SERVICE,
R/O SHRI KRISHNA COLONY, KOTHI BAZAR,
HOSHANGABAD (MADHYA PRADESH)
.....APPLICANT
(BY SHRI YASHRAJ GUPTA, ADVOCATE)
AND
SMT. MONIKA VYAS W/O SHRI ABHISHEK VYAS,
AGED ABOUT 31 YEARS, OCCUPATION: NA,
R/O 31, KAILASH NAGAR, TITYANI, MANDSAUR
AT PRESENT WORKING AS SUB INSPECTOR,
P.S. KHACHORD, DISTRICT UJJAIN (MADHYA PRADESH)
.....NON-APPLICANT
(BY SHRI PIYUSH SHRIVASTAVA, ADVOCATE)
This civil revision coming on for admission this day, the
court passed the following:
O R D E R
With the consent of the parties, matter is heard finally. The applicant - husband has preferred this civil revision -2- Civil Revision No.96 of 2022 under Section 115 of the Code of Civil Procedure, 1908 (in short 'CPC') being aggrieved by the impugned order dated 01/02/2022 passed by 1st Additional District Judge, Khachord, District Ujjain (M.P.) Case No.03/2021, whereby an application preferred by the applicant under Order VII Rule 11 of the CPC read with Section 14 of the Hindu Marriage Act has been dismissed.
The brief facts of the case are that the applicant and the non- applicant are the husband and wife and their marriage was solemnized on 30/01/2020 at Mandsaur as per the hindu rituals and customs. On 05/01/2021, non-applicant filed an application under Section 13 of the Hindu Marriage Act before the Additional District Judge, Khachord, District Ujjain. Thereafter, the applicant has filed an application under Order VII Rule 11 of the CPC read with Section 14 of the Hindu Marriage Act for rejection of plaint on the ground that marriage between the applicant and non-applicant was solemnized on 30/01/2020 and non-applicant has filed an application under Section 13 of the Hindu Marriage Act on 04/01/2021 i.e. within one year of their marriage. After hearing both the parties, the trial Court has rejected the application by the impugned order, therefore, present revision petition is filed.
Counsel for the applicant contended that the learned trial Court has grossly erred in dismissing the application. No proper and justified reason for dismissal of the application is given. The order -3- Civil Revision No.96 of 2022 of the trial Court is without jurisdiction and the trial Court has not followed the due procedure as prescribed under the law. Impugned order is illegal, perverse and is bad in law. Hence, he prayed that the impugned order dated 01/02/2022 be set aside.
Per contra, learned counsel for the non-applicant prays for its rejection by supporting the order impugned passed by the trial Court.
Both the parties are heard at length and perused the record. The question involved in the present revision has been a subject of consideration in a range of judicial opinions. In order to understand the controversy herein, this Court may set out Section 14 of the Hindu Marriage Act and the same reads as under:-
"14. No petition for divorce to be presented within one year of marriage.
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, ¹[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented ¹[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or -4- Civil Revision No.96 of 2022 concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the ²[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after ³[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."
(emphasis supplied) Section 14 lays down a general rule that no petition for divorce must be entertained by the Court before a period of one year from the date of marriage. The proviso to Section 14 provides for circumstances wherein the aforesaid condition can be relaxed, if it is provided that: (I) there is exceptional hardship on the petitioner, or; (ii) there is exceptional depravity on the part of the respondent.
Under the proviso to Section 14 of the Hindu Marriage Act, parties can seek waiver of one year period in presentation of the divorce petition but the same cannot have the effect of diluting the mandate of Section 13(B)(1) of the Act, which clearly mandates separation of one year between the parties before presentation of their joint divorce petition. In the present case, non-applicant did not file any application before the trial Court for waiver of one year -5- Civil Revision No.96 of 2022 period for presentation of divorce petition on the ground of exceptional hardship or due to the exceptional depravity.
From perusal of the order sheet dated 04/01/2021 and 05/01/2021 it appears that even the non-applicant wife did not make any such oral prayer and nothing has been mentioned in order dated 05/01/2021 by the trial Court that the aforesaid waiver of one year period has been granted to the non-applicant wife.
The Division Bench of this Court in the case of Vishal Kushwaha Vs. Mrs. Ragini Kushwaha passed in First Appeal No.950/2021 on 28/03/2022 in paragraph No.18 has held as under:-
"18. The Court gets the jurisdiction to entertain and decide the petition for divorce by mutual consent only after the ingredients under Section 13B(1) of the Act are satisfied. Therefore, we are of the view that the mandate envisaged under Section 13B(1) of the Act providing a period of one year separation before the presentation of the petition to seek divorce by way of mutual consent cannot be waived under proviso of Section 14 of the Act either on the application of the parties or suo motu by the Court, as separation of one year is prerequisite for invoking Section 13B(1) of the Act."
In view of the law laid down by the Division Bench of this Court in the case of Vishal Kushwaha (Supra), this Court is of the considered view that the non-applicant wife has filed divorce petition under Section 13 of the Hindu Marriage Act at premature stage. No application for divorce can be presented before the expiry of one year period of marriage. The aforesaid mandate cannot be -6- Civil Revision No.96 of 2022 waived under the proviso to Section 14 of the Act.
Therefore, the trial Court has committed grave error of law and fact in dismissing the application filed by the applicant. The impugned order passed by the trial Court suffers from jurisdictional error and the trial Court has not acted properly in exercising its jurisdiction. Therefore, the impugned order deserves to be set aside.
Accordingly, this civil revision is allowed and the impugned order passed by the trial Court dated 01/02/2022 is hereby set aside. The trial Court is directed to pass an appropriate order regarding the disposal of main petition filed under Section 13 of the Hindu Marriage Act by the non-applicant wife. Both the parties shall be free to move an appropriate petition after one year period is elapsed from the date of their marriage.
Certified copy as per rules.
(ANIL VERMA) JUDGE Tej Digitally signed by TEJPRAKASH VYAS Date: 2022.05.11 18:43:34 +05'30'