Uttarakhand High Court
Kanchan Upreti vs Smt Komal Upreti on 23 February, 2017
Equivalent citations: AIR 2017 UTTARAKHAND 65, (2017) 2 UC 962, (2017) 2 MARRILJ 892, (2017) 3 CIVILCOURTC 442, (2018) 1 HINDULR 74
Author: V.K.Bist
Bench: K.M. Joseph, V.K.Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 80 of 2016
Kanchan Upreti ............ Appellant
Versus
Smt. Komal Upreti ............. Respondent
Dated: 23rd February, 2017
Mr. Sandeep Kothari, Advocate for the appellant.
Mr. Pankaj Chaturvedi, Advocate for the respondent.
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K.Bist, J.
K.M. JOSEPH, C.J. (Oral) Appellant‐husband challenges the order passed by the Family Court, Nainital rejecting the application filed by the appellant under Section 14 of the Hindu Marriage Act, 1955 (from hereinafter referred to as "the said Act"). The case of the appellant was filed under Section 14 of the said Act on the following allegations:
The marriage between the parties was solemnized on 09.06.2016 as per Hindu customs and traditions. The marriage was not consummated after the marriage. The defendant informed the appellant that her marriage with the appellant was arranged against her wishes by her family and she want to spend her life with some other person. When the appellant talked to the family of the respondent about this, they asked the appellant to effect a divorce. The respondent was not ready to accept the 2 appellant as her husband and does not want to maintain any relationship. The object of the marriage is over and there is no reason to wait for one year and it is extremely necessary to forego the legal period. The impugned order further reveals that the respondent, on being served, appeared and contended that the marriage was arranged by her family with the appellant against her wishes, which fact could not be brought to the notice of the appellant before the marriage. No conjugal relations have occurred between them. After the appellant had been informed by the defendant, her family gathered at Haldwani and all of them pressurized the respondent to consummate the marriage but she did not agree. She wants to be free by dissolving the marriage.
2. The Court proceeded to find that the marriage was solemnized against the wishes of the respondent; the marriage was not consummated; the parties want to obtain a decree of divorce; on the basis of the statements of the parties, it is undisputed that the suit of the parties does not fall under any ground given in Section 13 of the said Act; and the parties can file a petition for decree of divorce by mutual consent under Section 13 of the said Act. It is further found that Section 13 of the said Act is a complete self contained code. The power to grant relaxation in the conditions of the above section lies with the Hon'ble Supreme Court under Article 143 of the Constitution of India and no other Court has power to grant relaxation with the above said conditions. The court further held that the provision of Section 14 of the said Act is in the 3 context of presenting the suits under Section 13 of the said Act before one year and Section 14 of the said Act has no bearing on the cases of Section 13‐B of the said Act. Therefore, the application was rejected.
3. Heard Mr. Sandeep Kothari, learned counsel on behalf of the appellant and Mr. Pankaj Chaturvedi, learned counsel on behalf of the respondent. The parties were also present.
4. The respondent‐wife in fact reiterated before us that the marriage was solemnized against her will. It is also not disputed before us that the marriage was not consummated.
5. A perusal of the said Act reveals the scheme to be as follows:
(i) Under Section 13, various grounds are set out for dissolution of a marriage. Section 13‐B contemplates decree of divorce on the basis of mutual consent. It reads as follows:
"13‐B. Divorce by mutual consent.--(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the 4 presentation of the petition referred to in sub‐ section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."
(ii) It is, thereafter, that Section 14 provides as follows:
"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, 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 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 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 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 the 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 the expiration of one year from the date of the 5 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."
6. Therefore, the idea is to prohibit the filing of petitions under Section 13 before the expiry of one year from the date of solemnization of marriage. The proviso to section 14, however, contemplates that there may be situations, where there would be exceptional hardship to the petitioner to insist that the period of one year must elapse from the date of solemnization of marriage for him to file a petition. The other ground is exceptional depravity on the part of the respondent. An example of depravity would be an exceptional case of physical cruelty, which the law contemplates that the party must be relieved from and not compelling him or her to wait for a period of one year before the petition is presented.
7. After hearing the learned counsel for the parties as also the parties themselves, we are of the view that this cannot be treated as a case of exceptional depravity on the part of the respondent; but, we would think that this would be a case of exceptional hardship to the appellant‐husband. This is for the reason that, even according to the respondent‐wife, she was not agreeable for entering into the matrimonial tie. It is her case, going by the pleadings, that this fact could not be intimated to the appellant‐husband before the marriage. It is also not in dispute that the marriage has not been consummated. Thus, for no fault of the appellant‐husband, the marriage remains unconsummated, as the respondent‐wife is not apparently 6 agreeable for consummating the marriage and her case is that the marriage was solemnized against her will.
8. In such circumstances, we would think that the order rejecting the application under Section 14 of the said Act cannot be justified. We, therefore, set aside the impugned order and remit the matter back after allowing the application under Section 14 of the said Act. Accordingly, the Application filed under Section 14 will stand allowed and the petition filed under Section 13 will be proceeded with as per law.
9. The appeal is allowed as above. No order as to cost.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
23.02.2017 23.02.2017
Rahul