Patna High Court - Orders
Rohit Bishnoi vs Reena Devi on 7 August, 2014
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta, Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.460 of 2011
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Rohit Bishnoi son of Krishna Chandra Bishnoi Resident of Mohalla D N
Das Lane, Bengali Akhara, Langertoli, Post Office Bankipur, Police Station
Kadamkuan, District Patna
.... .... Petitioner/Appellant
Versus
Reena Devi wife of Rohit Bishnoi daughter of Om Shankar Agrawal
Resident of Village Dumari (Jamtara) G T Road near Paras Nath College,
P.O. Dumari, Santhal Pargana Dumari, District Giridih, Jharkhand
.... .... opposite party/Respondent
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Appearance :
For the Appellant/s : Mr. T.N.Maitin, Sr. Advocate with
Mr. Harshwardhan Sahay, Advocate
For the Respondent/s : Mr. Ashok Kumar Mishra, Advocate with
Mr.Manoj Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR
DATTA
and
HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA)
12 07-08-2014Heard learned counsel for the appellant and learned counsel for the sole respondent.
The appeal has been filed against the order date 5.5.2011 passed by the Principal Judge, Family Court, Patna in Matrimonial Case No. 445 of 2010 by which it has been held that the matrimonial case was not a fit case for admission and was accordingly rejected on the point of admission itself.
Shorn of unnecessary details the facts of the case are that the appellant was married with the respondent Reena Devi on 6.3.2003 and subsequently a suit for decree of nullity was filed Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 2 under Section 12(1)(a) of the Hindu Marriage Act being Matrimonial Case No. 208 of 2003 before the Principal Judge, Family Court at Patna. In the said suit the following issues were framed :-
"1. Is the case as framed maintainable ?
2. Has the petitioner got valid cause of action for the case ?
3. Whether the opp. party is a complete woman or not ?
4. Whether the petitioner is entitled for declaring the marriage a nullity ?
5. To what other relief/s the petitioner is entitled to ?"
At the stage when the argument was going on and the argument on behalf of the respondent had concluded, a petition under Order VI Rule 17 and Section 151 CPC was filed on 31.5.2010 by the appellant stating that he and the respondent were living separately since 2.7.2003 and both the parties had no marital relationship and they had deserted each other and therefore the marriage was fit to be dissolved by a decree of divorce under Section 13(1)(i-b) of the Hindu Marriage Act and as such the petitioner (appellant) may be permitted to add paragraphs 14A and 15 after paragraph-14 of the main petition. The respondent was given chance to file reply to the same but no reply was filed and prayed for further time but the learned Principal Judge considering the fact that the case had been fixed for argument refused to grant further time and passed the order on the petition on 6.2.2010 Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 3 holding that in the said case issues have been framed, evidences have been adduced by both sides and now argument was going on and even argument on behalf of opposite party had been concluded; the said petition had been filed by the petitioner (appellant) which is clearly belated one and so far as contention of the petitioner that he is living separately since 2003, it is an admitted fact that the petitioner is living separately since 2003 and as such in his opinion the said petition shall be considered at the time of passing of final judgment. The amendment petition filed by the petitioner was rejected holding that there was no merit in the petition. Thereafter the argument proceeded in the matter and the final judgment was pronounced on 15.6.2010. In the final judgment the learned Principal Judge in paragraphs 35, 36 and 37 dealt with the issues raised in the amendment petition which had previously been rejected in the year 2010 in the following words :-
"35. Before parting with the judgment it is relevant to mention here that at the fag end of the trial during argument the petitioner has filed an amendment petition for addition of Sec. 13(1)(ib) of the Act and for addition of paras 14A and 15 for dissolution of marriage on the ground of desertion stating that it is admitted fact that the petitioner is living separately since 2003, as such, she is living separately from the petitioner for more than two years and there is no physical relationship between them, hence the petitioner is entitled for decree of divorce on the ground of desertion u/s 13(1)(ib) of the Act though the petitioner has been rejected earlier but I feel it necessary to discuss at this moment before parting with the judgment.Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 4
36. So far sec. 13(1)(ib) is concerned it provides as follows :
"Any marriage solemnized,............. be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceeding the presentation of the petition"
and that clearly shows that so far period of separation of two years is concerned that has to be immediately preceeding the presentation of filing of the case and not during the pendency of the case because in the present case admittedly the petitioner and the respondent lived together till July, 2003 and present case has been filed on 31.7.2003, as such it can not be said that respondent has deserted the petitioner for more than two years immediately preceeding the filing of the petition, as such, the aforesaid argument of the petitioner does not find acceptable to me.
37. Apart from that if the respondent is living separately in her „Maike‟ this fact can not be ignored that as the petitioner has challenged her womanship that she is not a complete woman and she is impotent that caused tension between the parties and due to that she is in her maike and petitioner can not be permitted to take advantage of his own wrong. In the aforesaid view of the matter I find no force in the argument of the petitioner so far desertion is concerned."
The suit for declaration of nullity of marriage having been dismissed on contest with cost and the decree was directed to be prepared accordingly, the appellant subsequently filed Matrimonial Case No. 445 of 2010 which has been rejected on the point of admission by the impugned order dated 5.5.2011.
Learned counsel for the appellant submits that the earlier matrimonial case filed by the petitioner was for grant of Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 5 decree of nullity by declaring the marriage of the appellant with the respondent as null and void. Thus in the said case the filing of the amendment petition for adding the ground of desertion was itself uncalled for and on the basis of wrong legal advice. Any such issue of desertion can only be raised upon the marriage itself being treated as valid and sought to be dissolved by decree of divorce whereas the relief sought in the said matrimonial case was for a decree of nullity of the marriage itself.
Moreover, even the said amendment petition was rejected by the learned Principal Judge and thus there was no pleading on the record on the point of desertion nor was any such point either admitted or denied by the respondent; there was thus no issue also regarding desertion in the previous matrimonial case, as is evident from the five issues framed in the said case. There being no pleading on the point nor any issue framed on the point of desertion, any observation in the previous judgment dated 15.6.2010 with regard to the issue of desertion was totally uncalled for and would not amount to a decision on a matter directly and substantially in issue between the parties. That being the position, the subsequent matrimonial case on the ground of desertion could not have been rejected by the impugned order on the ground of res judicata as there was no previous matter directly Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 6 and substantially in issue between the parties which had been decided in the previous matrimonial case.
In support of the aforesaid stand learned counsel for the appellant relies upon a decision of the Supreme Court in the case of V. Rajeshwari (Smt.) vs. T.C.Saravanabava : (2004) 1 SCC 551, in relevant portion of paragraph-12 of which it has been held as follows :
"12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried...."
Learned counsel for the respondent, on the other hand, submits that the earlier finding of the learned Principal Judge in the judgment dated 15.6.2010 in Matrimonial Case No. 208 of 2003 with regard to desertion having not been challenged and set aside the same would operate as res judicata in the subsequent proceedings.
From a consideration of the facts, the issues narrated above as also the submissions of learned counsels for the parties, it is evident that the earlier matrimonial case itself was filed for grant of decree of nullity under Section 12(1)(a) of the Hindu Marriage Act so as to declare the marriage itself as null and void. There was no pleading of the parties with regard to the issue of Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 7 desertion and no such issue had been framed by the court below and accordingly no evidence also had been led on the point of desertion by the parties although there may have been reference on the point in the amendment petition for incorporating the same. The said amendment petition had also been rejected by the learned Principal Judge. Thus, in our view, there was no such matter regarding desertion directly or substantially in issue in the said matrimonial case.
In the said circumstances, any observation made in the judgment on the issue of desertion appears to be wholly uncalled for, particularly after the amendment petition itself had been rejected and parties had not been given any opportunity to lead evidence on the point. The same has therefore to be treated as obiter observations by the court below and those observations cannot have the effect of defeating the right of the appellant to file a fresh matrimonial case for divorce on the ground of desertion.
That being the position, the learned Principal Judge ought not to have rejected the Matrimonial Case No. 445 of 2010 as a case not fit for admission by the impugned order dated 5.5.2011.
The appeal is, accordingly, allowed. The impugned order dated 5.5.2011 is set aside and the matter is remanded to the Patna High Court MA No.460 of 2011 (12) dt.07-08-2014 8 Family Court to decide the same in accordance with law.
Since the dispute between the parties is going on from the year 2003 itself, let the Matrimonial Case be concluded expeditiously and preferably within a period of four months from today. The parties are directed to appear before the Principal Judge, Family Court, Patna on 28th August, 2014, who shall thereupon fix the date in the matter so as to conclude the same as directed.
(Ramesh Kumar Datta, J)
spal/- (Dr. Ravi Ranjan, J)
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