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2013 DIGILAW 1210 (PAT)

Rekha Devi v. Binod Kumar Sharma

2013-10-04

NAVIN SINHA, VIKASH JAIN

body2013
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) We have heard counsel for the appellant and the respondent. 2. The present appeal arises from order dated 2.12.2010 passed by the Principal Judge, Rohtas at Sasaram in Matrimonial Case No. 28 of 2007, allowing the same granting divorce to the respondent under Section 13 of the Hindu Marriage Act. 3. Learned counsel for the appellant submitted that the divorce application was filed on two counts, cruelty and desertion. The Principal Judge was of the conclusion that cruelty has not been proved. The appreciation of the ‘desertion’ without reasonable cause under the Hindu Marriage Act has been grossly misconstrued. There is complete lack of consideration of the evidence led by the Appellant in this regard, making the finding perverse. The decision making process is completely vitiated by failure to take into consideration relevant materials. The finding that there had been irretrievable breakdown of the marriage is not a valid ground for divorce under the Hindu Marriage Act, more particularly in the facts of the present case when no finding of irretrievable breakdown has been arrived at. 4. Learned Senior Counsel for the respondent submitted that the judgment under appeal displays application of judicial mind, lack of possibility for revival of matrimonial harmony along with the fact that the appellant left the matrimonial home without any reason. Mental cruelty alleged has not been properly appreciated. 5. We have considered the submissions on behalf of the parties. In view of the nature of the order we propose to pass remanding of the matter to the Family Court, we do not consider it proper to discuss or make any observation except to the extent relevant list it prejudice either party. 6. The original records had been called for. We have gone through the evidence of the appellant including her cross examination and also the evidence and cross examination of the respondent. We are of the opinion that the Principal Judge committed gross error of procedure affecting dispensation of justice when he does not discuss the evidence of the appellant including her cross examination before holding that the appellant had left the matrimonial home without reasonable cause amounting to desertion. 7. The judgment under appeal is therefore held to be unsustainable. It is accordingly set aside. The matter is remanded to the Principal Judge, for passing fresh orders. 8. 7. The judgment under appeal is therefore held to be unsustainable. It is accordingly set aside. The matter is remanded to the Principal Judge, for passing fresh orders. 8. We direct the parties to appear before the Principal Judge, Rohtas at Sasaram along with a copy of the present order on the 11th of November 2013. The Principal Judge will fix a date of hearing in presence of the parties and conclude it within a maximum period of two months without granting unnecessary adjournments to either party. The matter shall be decided on the materials already on the record and it shall not be open for the parties to lead any further evidence or bring any further materials on record. 9. Let the lower Court records returned to the Principal Judge, Family Court, Rohtas at Sasaram immediately. 10. The appeal stands disposed.