Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 701 (PAT)

Sarika Kumari v. Arul Kumar Sinha @ Tuntun Singh

2007-04-06

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. The Stamp Reporter has objected to the maintainability of the civil revision application. 2. As there is no adjudication to the claim made by the petitioner, I am of the opinion that this present civil revision application is maintainable. 3. The objection raised by the Stamp Reporter is overruled. 4. Wife-petitioner, aggrieved by a portion of the judgment dated 12th of August, 2005 passed by the 1st Additional District Judge, Nalanda, Biharsharif in Judicial Separation (Divorce) Case No. 20 of 2002 observing that the provisions of Sec.23A of the Hindu Marriage Act is totally inapplicable, has preferred this application. 5. Facts lie in a narrow compass. Husband-opposite party filed application for decree of judicial separation. Wife-petitioner herein, filed written statement controverting the assertion made by the husband and in fact prayed for dissolution of marriage by decree of divorce. She also filed separate application under Sec.23A of the Hindu Marriage Act (hereinafter referred to as the Act) on 27.6.2005 for passing the decree of divorce in terms thereof. Husband did not appear in the suit later on and failed to produce any evidence. However, wife led evidence in support of her assertion. The learned Judge by the impugned judgment dismissed the application filed by the husband. 6. So far as the application filed by the wife, it observed that the provision of Sec.23A of the Act is not applicable in the case. It is this portion of the order by which the wife is aggrieved and has preferred this application. 7. Mr. Jitendra Kishore Verma, appearing on behalf of the petitioner submits that the view taken by the learned Judge that the provision of Sec.23A of the Act would be inapplicable is totally erroneous. He points out that no reason at all has been indicated as to why said provision is not applicable. 8. Mr. Anjani Kumar, appearing on behalf of the opposite party, however, contends that petitioner is already married and, as such, there is no occasion for her to obtain the decree of divorce. 9. Having appreciated the rival sub-mission, I find substance in the submission of Mr. Verma. Sec.23A of the Act, inter alia, provides that the respondent in a proceeding of judicial separation may pray for relief which she would have been entitled, had she presented a petition seeking such relief. 9. Having appreciated the rival sub-mission, I find substance in the submission of Mr. Verma. Sec.23A of the Act, inter alia, provides that the respondent in a proceeding of judicial separation may pray for relief which she would have been entitled, had she presented a petition seeking such relief. He points out that the wife had claimed relief, in a petition filed for judicial separation by the husband, on the ground of cruelty and she having led evidence in support thereof, the court below was obliged to pass decree for dissolution of marriage in terms of Sec.23A of the Act. In my opinion, the court below was under an obligation to consider the relief prayed for by the wife in terms of Sec.23A of the Act. He failed to exercise the jurisdiction vested in him under Sec.23A of the Act when it held that such an application is not maintainable. 10. Accordingly, the impugned order holding the application to be not maintainable, meaning thereby the rejection thereof is set aside and the matter remitted back to him for consideration afresh in accordance with law bearing in mind the observation aforesaid. 11. As the matter pertains to matrimonial dispute pending since long, the learned Judge shall make endeavour to dispose of the same within three months from the date of receipt/production of a copy of this order. 12. In the result, the application is allowed, that portion of the judgment dated 12th of August, 2005 passed by the 1st Additional District Judge, Nalanda, Biharsharif in Judicial Separation (Divorce) Case No. 20 of 2002 whereby it held that the provisions of Sec.23A of the Act is not applicable is set aside and the matter remitted back for reconsideration in accordance with law bearing in mind the observation aforesaid. No cost.