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Madhya Pradesh High Court · body

2013 DIGILAW 90 (MP)

Sapna v. Prakash

2013-01-17

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT : This judgment shall dispose of an appeal filed under Section 28 of the Hindu Marriage Act aggrieved of the judgment and decree dated 18-5-2011, passed by the 21st Additional District Judge, Indore in H.M.A. Case No. 2/2010, whereby the learned Additional District Judge has decreed the suit filed by the respondent for divorce. 2. The parties to the suit was married on 11-12-2001 according to the Hindu rites and customs. A female child was born from the wedlock on 5-11-2003 who is in possession of the appellant. 3. A suit was filed by the respondent seeking dissolution of marriage under Section 13 of the Hindu Marriage Act primarily on the basis of an ex pane decree granted in his favour under Section 9 of the Hindu Marriage Act in HMA Case No. 54/2007 wherein even though the appellant appeared, but thereafter, stopped appearing and therefore, an ex pane decree was granted under Section 9 of the Hindu Marriage Act in favour of the respondent vide judgment dated 21-1-2009. In the plaint, it was submitted that the directions of the Court in the aforesaid decree was not complied with by the appellant and that a period of one year has expired since passing of the said decree. It was also alleged that since the last three years the appellant was living separately from the respondent. On that basis, the decree of divorce was sought. It may also be observed that even other allegations such as respondent treating the appellant with cruelty was also made. 4. The aforesaid suit was contested by the appellant by filing a written statement wherein she denied the averments made by the respondent in his objection. It was alleged that the respondent was not performing his obligations as husband and father of the child born from the wedlock. In Para 7, she also stated that she was still ready and willing to live with the respondent. As regard the decree under Section 9 of the Hindu Marriage Act, it has been submitted that it was an ex pane decree and that after passing of the said decree no efforts were made on the part of the respondent to take the appellant with him. It was further submitted that as far as the ex parte decree is concerned, an application was filed for setting aside the same. It was further submitted that as far as the ex parte decree is concerned, an application was filed for setting aside the same. This has been so stated in Para 6 of the written statement. With this application she sought dismissal of the plaint. 5. The Trial Court after recording the evidence of the parties vide impugned judgment has passed a decree of divorce in favour of the appellant. A perusal of the judgment goes to show that in the judgment, the Trial Court has not framed any issues nor has recorded issue-wise findings. The judgment also does not show that a decree of divorce was granted under Section 13 (1) (A) of the Hindu Marriage Act, which is the provision applicable when a decree of restitution of conjugal rights was passed under Section 9 of the Hindu Marriage Act and there is no co-habitation between the parties for a period of more than one year after the passing of the decree. The judgment also does not show as to any efforts has been made on the part of the respondent to take back the appellant after passing of the decree. 6. In view of the aforesaid, while setting aside the impugned judgment, we remand back the case to the Additional District Judge, Indore to frame the following issues in this case :- (i) Whether there has been resumption of co-habitation between the parties after passing of a decree under Section 9 of the Hindu Marriage Act and its effect. (ii) Whether the respondent was entitled to a decree of divorce on other grounds also. (iii) Relief. 7. The Additional, District Judge after framing the aforesaid issues will give liberty to the parties to lead evidence. 8. Since this is a case filed by the respondent on the ground that there was no resumption of co-habitation after passing of a decree under Section 9 of the Hindu Marriage Act, the Court will pass specific orders in this regard as about efforts made if any for resumption of co-habitation as per the stand of the respondent after passing of the decree for restitution of conjugal rights. With these observations, the appeal is partly allowed. The judgment and decree of the Trial Court is set aside. The case is remanded back to the Trial Court to decide the matter afresh in accordance with the directions as stated above. With these observations, the appeal is partly allowed. The judgment and decree of the Trial Court is set aside. The case is remanded back to the Trial Court to decide the matter afresh in accordance with the directions as stated above. There shall be no order as to costs in the facts and circumstances of the case. Parties to appear before the Trial Court on 7-2-2013. The Trial Court shall decide the matter within a period of six months. C.C. as per rules.