Gujarat High Court
Bindiya W/O Darshit Mehta D/O Ashok ... vs Defendant(S) on 21 April, 2016
Author: B.N. Karia
Bench: S.R.Brahmbhatt, B.N. Karia
C/FA/687/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 687 of 2016
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BINDIYA W/O DARSHIT MEHTA D/O ASHOK JAMNADAS SHAH &
1....Appellant(s)
Versus
.....Defendant(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Appellant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 21/04/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE B.N. KARIA) By means of this Appeal, preferred under Section 96 of the Code of Civil Procedure, 1908 ["CPC" for short] read with the provisions of the Hindu Marriage Act, 1955 ["Act" for short], the appellants seek to quash and setaside the judgment and order dated 22nd March 2016 passed by the learned Principal Judge, Family Court, Jamnagar in Hindu Marriage Petition No. 46 of 2015 with a further prayer to grant decree of divorce with mutual consent, as provided Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER under Section 13 [B] of the Act.
2. Brief facts, in nutshell, are
3. Marriage of the appellants herein was solemnized on 8th December 2010 at Jamnagar, as per the Hindu Marriage rites and rituals. After a brief period of their marital ties, on account of certain differences, the appellants started living separately since past two years. Efforts made on their part as well as by the elderly members of their respective families failed into vein, and therefore, they preferred Family Suit No. 46 of 2015 before the learned Principal Family Judge at Jamnagar seeking divorce by mutual consent, as provided under Section 13 [B] of the Act.
4. The learned Principal Judge, Family Court, Jamnagar; while admitting and hearing the Suit, called upon the respective appellants for reconciliation. However, despite best of the efforts made by the learned Principal Judge, the appellants did not turn up and adhere to their request for allowing the petition, and for passing the decree of divorce. After completion of statutory period of reconciliation, the said Family Suit came up on the Board for evidence, wherein, the parties Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER submitted their affidavits in support of the petition. Therefore, the learned Principal Judge, Family Court, on considering the facts and circumstances, affidavits and oral submissions made by the parties and their respective advocates found that they have exchanged their articles and Stridhan and recorded that since there exist no cause of action, the plaints deserves rejection. While arriving at this conclusion, the learned Judge, Family Court placed reliance upon Order 7 CPC, and in furtherance thereof added that the parties have already got divorce registered with the Sub Registrar at Jamnagar, and therefore, they have no remedy under this provision.
5. Aggrieved and dissatisfied with the said judgment and order dated 23rd March 2016 passed in Family Suit No. 46 of 2015, the appellantspetitioners have preferred this Appeal with the prayers aforestated.
6. Heard learned advocate Mr. Virat Popat for the appellants. He submitted that the order passed by the learned Family Judge, Jamnagar in Family Suit No. 46 of 2015 is contrary to law in as much as both the appellants who were original petitioners before the Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER learned Family Judge had preferred a joint Family Suit seeking divorce by mutual consent, as provided under Section 13 [b] of the Hindu Marriage Act, 1955. According to the learned advocate, the Family Court is duty bound to pass a decree for divorce by mutual consent when both the parties have followed the procedure prescribed under Section 13 [b] of the Act; that the learned Judge has grossly erred in holding that there was no cause of action in the plaint; that all the conditions required under the provision of Section 13 [b] of the Act have been satisfied, and therefore, decree for divorce on mutual consent is required to be passed; that the order passed by the Family Court suffers from the vice of non application of mind, erroneous and unwarranted, and therefore also, the impugned judgment and order dated 22nd March 2016 is required to be quashed and setaside.
7. Having considered facts of the case, submissions made by learned advocate Mr. Popat appearing for the appellants and perusing the material available on the record, it appears that the learned trial Judge has observed in his judgment at para4 that, "..It is true that they have followed necessary customary rites, they have exchanged the Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER articles and Stridhan which they have received at the time of marriage as gift and present. It is further found that the relatives and friends of the parties have made efforts to settle the dispute and try to reunion, they failed in their efforts and only solution remain with them to get divorce." Here, this Court would like to refer Order VII Rule 1 (e) CPC which says that every plaint shall contain, "the facts constituting the cause of action and when it arose". As per the opinion of the learned Family judge, no cause of action is shown in the plaint, and therefore, the Family Suit was rejected. If we go through the plaint, as produced on the record, it is specifically averred that the family members of both the sides have made enormous efforts many a times for compromise and restitution of the appellants' matrimonial life but no positive result has come forth and there is no scope and hope for restitution of the appellants' matrimonial life, and therefore, after endless efforts, both the appellants as well as their family members finally decided to dissolve marriage of both the appellants by mutual consent decree in their future interest, career and life. It is further averred in the petition that it is not possible to arrive at reconciliation Page 5 of 10 HC-NIC Page 5 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER between the parties and the parties are living separately for the past two years and their wedlock has virtually become a dead lock. It appears that appellant no.1 is permanently residing at Jamnagar for more than two years. Both the appellants have under proposal for second marriage and since last two years, the cause of action is continuously running for presenting the petition. From the pleadings made in the plaint, both the appellants have categorically shown that for what reasons they have presented the suit praying for decree of divorce by mutual consent. The learned Family Judge has also accepted the reasons, but only on the hyper technical ground and without assigning proper reasons, rejected the prayer made by the appellants. It appears from the record that in support of their pleadings and averments made in the plaint, they have filed their affidavits vide Exh. 1.1 and 1.2. Further, the appellant no. 2Mr. Darshit Prakashbhai Mehta has deposed on oath before the trial Court stating the same contents saying that since May 2013, he is staying separately from his wife ie., the appellant no.1 herein. They have decided that a decree for divorce by mutual consent be granted Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER as it was not possible to continue with the marriage life. The appellant no.1 has also deposed on the same line before the trial Court vide Exh. 8 stating that in any circumstance, their marriage life cannot be continued, and therefore, they have requested for divorce. Here, this Court would like to refer to the judgment of this Court rendered in case of Kiritbhai Girdharbhai Patel v. Prafulaben Kiritbhai Patel [First Appeal No. 1265 of 1992 :: Decided on 25th August 1992], wherein the Court while allowing the appeal, in para 6 of the judgment, referred to the requirements of the provisions of Section 13B [1] of the Act, which read thus "(i) there must be a petition jointly presented to the competent Court by both the spouses; (ii) the ground for dissolution of the marriage by a decree of divorce should be clearly and categorically shown - (a) that the parties have been living separately for a period of one year or more before the presentation of the petition; (b) that they have not been able to live together; and (c) that they have mutually agreed that the marriage should be dissolved.
7. Needless to mention that the granting of decree for divorce by mutual consent by the competent Court, no fulfillment of the aforesaid conditions, does not seem to be a matter of discretion with the Court. But the Court shall have Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER to pass a decree for divorce by mutual consent, subject to the provisions of Section 13B (1), as aforestated, and after following the procedure prescribed in subsection (ii) of Section 13B(1) of the Act, namely :
(i) both the spouses should apply to the Court not less than six months of the presentation of the petition and not later than 18 months after the presentation of the petition and they may be heard and decree dissolving the marriage may be granted,
(ii) the Court must give a hearing to the parties; (iii) the Court may make such an inquiry into the correctness of the grounds stated in the petition, (iv) the Court must thereafter be satisfied that the marriage between the spouses had been solemnized after the Act came into force, after 1955, and the material avertments made in the petition are true." It is not in dispute that the parties have been living separately since last more than two years. The appellant no. 1 is staying at Jamnagar, while the appellant no. 2 is staying at Rajkot. During the pendency of the petition before the trial Court, the period of their separation was more than two years, which is also established on the record, and therefore on that count also, the parties should be allowed to conclude their broken marital ties by granting the decree for divorce by mutual consent. Hence, this Court has no hesitation in holding that the parties having been separated for the past more than Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER two years and that they have not been able to live together as husband and wife and further they have mutually agreed that their marriage should be dissolved, which would entitle the spouses to get a decree of divorce by mutual consent, as provided under Section 13B [1] of the Act, more particularly when before this Court also, both the appellants have submitted their affidavits stating the same facts as were disclosed before the Family Court at Jamnagar in their joint petition as well as in their deposition.
Thus, in the considered opinion of this Court, the trial Court ought to have granted divorce decree by mutual consent. The interpretation made by the learned Family Judge, Jamnagar that there was no cause of action under Order VII CPC is not legal and valid as it runs diametrically opposite to the object and spirit of the provision.
Resultantly, the impugned judgment and decree dated 22nd March 2016 passed by the learned Principal Judge, Family Court, Jamnagar in Family Suit No.46 of 2015 is quashed and setaside. Decree for divorce by mutual consent, as contemplated under the Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Apr 23 02:20:58 IST 2016 C/FA/687/2016 ORDER provisions of Section 13B [1] of the Hindu Marriage Act, 1955 by dissolving the marriage between the appellants herein is hereby granted; as prayed for, as per the original joint petition. First Appeal is allowed with no separate order as to costs.
(S.R.BRAHMBHATT, J.) (B.N. KARIA, J.) Prakash Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Apr 23 02:20:58 IST 2016