Allahabad High Court
Smt. Sarika Kesarwani vs Manu Kesarwani on 23 October, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:169662-DB Court No. - 39 Case :- FIRST APPEAL No. - 961 of 2024 Appellant :- Smt. Sarika Kesarwani Respondent :- Manu Kesarwani Counsel for Appellant :- Ashok Nath Tripathi Counsel for Respondent :- Ajay Kumar Verma Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Ashok Nath Tripathi, learned counsel for the appellant and Sri Tarun Agarwal along with Sri Prashant Mishra, learned counsel for the respondent.
2. Present appeal has been filed under Section 19 of the Family Court Act, 1984, arising from order dated 9.9.2024 passed by Principal Judge, Family Court, Allahabad, in Matrimonial Petition No. 1674 of 2019 (Manu Kesarwani Vs. Smt. Sarika Kesarwani) filed under Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as the H.M.A.), seeking dissolution of marriage between the parties, solemnized on 2.5.2014.
3. The divorce suit proceeding was instituted by the respondent on 31.05.2019. Prima facie, perusal of the original plaint indicates that the suit has been instituted on ground of desertion and cruelty referable to Section 13 (1) (ia) and (ib) of H.M.A. During pendency of the suit, an amendment was sought and was allowed by order dated 20.03.2023, whereby the respondent was permitted to amend the plaint and introduce paragraph 17 (?), 17 (?) 17 (?) 17 (?) 17 (?) and 17 (?). Primarily, by means of the amendment, the respondent sought to introduce an additional ground referable to Section 13 (1-A) (ii) of the H.M.A. Thus, according to the respondent, the appellant failed to cohabit with the respondent in compliance to the decree of restitution of conjugal rights passed at the instance of the respondent, dated 15.04.2019.
4. On query made, it has been clarified by learned counsel for the parties that at present issues have been framed and the suit is pending at the stage of evidence.
5. At that stage, the appellant filed an application being paper no. 120-ga on 16.3.2024 referable to Order VII Rule 11 CPC. By means of the said objection, the appellant made the following prayer:
"??? ?????? ???????? ?? ?????? ?????? ?? ?? ???? ?? ??? ???????? ?? ????? ?? ?????? ???? ??? ?????? ??????????? ?? ???????? ??? ?????"
6. Thus, the appellant prayed for dismissal of the suit. Clearly, the application is referable to Order VII Rule 11 CPC. That application has been rejected by the learned Court below by the impugned order, on the reasoning that the divorce suit has been instituted on the ground of cruelty and desertion referable to Section 13 (i), (ia) and (ib) of the HMA.
7. In such circumstances, at first, preliminary objection has been raised that the present appeal is not maintainable being barred by Section 19 (1) of the Family Court Act, 1984, which does not provide for any statutory appeal against an interlocutory order.
8. On merits, learned counsel for the appellant has submitted that the ex parte decree for restitution of conjugal rights was passed at the instance of the respondent in O.S. No. 1165 of 2018 (Manu Kesarwani Vs. Smt. Sarika Kesarwani), by the Principal Judge, Family Court, Lucknow. Without allowing for the statutory period of one year to pass, the divorce suit was instituted and has been decreed (giving rise to the present appeal). It was instituted on 31.05.2019 i.e. within 45 days of the decree for restitution of conjugal rights. Relying on the express bar contained in Section 13 (1-A) (ii) of the H.M.A, it has been strenuously urged that the divorce suit is not maintainable as it had been prematurely filed.
9. Also, learned counsel for the appellant has relied on the plaint (amended and also unamended) to contend that the divorce suit is based only on the ground of desertion arising from non-compliance of the ex parte decree for restitution of conjugal rights dated 15.04.2019 passed in O.S. No. 1165 of 2018.
10. Since, it is not permitted to file a divorce suit within one year of a decree of restitution of conjugal rights being passed, the divorce suit instituted by the respondent remained not maintainable, being premature. Since, the respondent had obtained the decree for restitution of conjugal rights on 15.04.2019, he could not have approached the Family Court within one year from that date.
11. On the other hand, learned counsel for the respondent would first state that the respondent is not pressing any ground for divorce on the strength of Section 13 (1-A) (ii) of the H.M.A. Though, amendment was sought and it had been allowed by the learned Court below and amended pleadings are incorporated, at the same time, that ground has never been pressed. In support of that submission, learned counsel for the respondent has referred to the issues framed by the learned Court below. Four issues have been framed, that read as below:
"1- ???? ??????????? ?????? ???? ?? ??? ??????? ??????? ?? ????? ??????? ????? ???? ???? ???? 2- ???? ??????????? ?????? ???? ?? ???? ???? ??????-????? ???? ?? ???????? ?? ???? ??? ?? ? 3- ???? ???? ??? ??????????? ?? ???? ?????????? ????? ???????? 02.05.2014 ??????? ??? ???????? ?????? ?? ????????? ???? ???? ????? ??? 4- ???? ???? ???? ???? ?????? ?? ??????? ???? ?? ??????? ???"
12. Only, the first two issues are material to the relief of divorce prayed - being allegation of cruelty and further allegation of desertion. No issue has been framed alleging desertion on the strength of the Section 13 (1-A) (ii) of the H.M.A.
13. In view of the above, further submission of learned counsel for the respondent is the provision of Section 13 (1-A) (ii) of the H.M.A is not a provision to disable filing of divorce suit proceeding on any ground other than that covered under Section 13 (1-A) (ii) of the H.M.A. Divorce suit proceeding may otherwise arise on any of the grounds mentioned in Section 13 of the H.M.A and may continue without that bar of limitation arising.
14. In any case, in the facts of the present case, it has been stressed that the ex parte decree for restitution of conjugal rights dated 15.04.2019 does not exist. The appellant filed an application under Order IX Rule 13 CPC seeking recall of that judgment and decree. It was allowed by the learned Court below on 25.02.2021. That order has attained finality, inasmuch as it was never appealed against. In fact, later Original Suit No. 1165 of 2018 was withdrawn by the respondent, on 03.01.2023. Therefore, as on date, there operates no bar against the divorce suit proceeding.
15. Insofar as the respondent is not pressing the ground of desertion provided under Section 13 (1-A) (ii) of the H.M.A, the objection raised by the appellant is of no avail.
16. Last, it has been submitted that the respondent specifically stated that he is not pressing the amended pleading insofar as it relates to additional ground for divorce available to the respondent on the strength of Section 13 (1-A) (ii) of the H.M.A.
17. Having heard learned counsel for the parties and having perused the record, the statement made by the learned counsel for the respondent that the respondent would not press the ground for divorce Section 13 (1-A) (ii) of the H.M.A, is largely academic, inasmuch as in the first place that ground may have become available to the respondent only if the ex parte decree for restitution of conjugal rights dated 15.04.2019 was in existence. Inasmuch as it is admitted to the parties that that decree has been withdrawn and the suit itself has been dismissed, there is no occasion as may allow the respondent to press that ground or as may give rise to any reasonable apprehension to the appellant that the respondent is seeking dissolution of marriage on the strength of Section 13 (1-A) (ii) of the H.M.A.
18. In view of the above, we are of the firm opinion that the bar created under Section 13 (1-A) (ii) of the H.M.A, does not exist since there is no suit proceeding for restitution of conjugal rights.
19. As to the other grounds arising under Section 13 (1) of the H.M.A, no observation is required to be made at this stage as the matter is engaging the attention of the learned Court below. In face of specific issues farmed, all pleas being raised and all other objections that may arise to the appellant, may remain open to be raised at the appropriate stage.
20. The appeal lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 23.10.2024/Noman .
(Donadi Ramesh, J.) (S.D. Singh, J.)