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2014 DIGILAW 772 (PNJ)

Sarabjit Singh v. Lourdes Serrato

2014-05-02

NAVITA SINGH, S.S.SARON

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JUDGMENT S.S. SARON, J. This appeal has been filed by the appellant-husband against the judgment and decree dated 10.12.2013 passed by the learned Additional District Judge (ADJ-III), Ferozepur, whereby, the petition of the appellant under Section 13 of the Hindu Marriage Act, 1955 ('Act' for short) seeking dissolution of the marriage between the parties had been dismissed. The marriage between the parties was solemnized as per Sikh rites at Brar Palace, Mudki, District Ferozepur on 08.5.2000. The appellant alleged that after marriage, the parties lived together at Village Mudki, District Ferozepur only for a few days. They cohabited with each other as husband and wife. They had no issue from the marriage. Before the marriage, the respondent was living at California. At the time of marriage, the respondent came with her family in the house of Sh. Hari Singh Gill at Moga. The marriage was solemnized with the consent of parents of both the parties. It is alleged that the attitude of the respondent towards the appellant was not normal from the very first night of the marriage. She was not happy with the marriage and was openly saying that she was not willing for the marriage and she had not consented for the same. After 20 days of the marriage, the respondent went to California. She declared that she would not come back to India in future; besides, she would not call the appellant to California. Therefore, it is alleged that the respondent had continuously deserted the appellant for a period of two years. The respondent intentionally neglected the appellant. She was still not ready and willing to call the appellant to California or come back to India. Despite efforts made for patching up the matter, these remained unsuccessful. The learned Additional District Judge (ADJ-III), Ferozepur after considering the evidence and material on record held that though the marriage was solemnized on 08.5.2000, however, the petition for divorce was filed on 07.3.2012. No member of the family of the appellant had been examined. The appellant had only examined Sukhmander Singh, who, it was claimed had attended the marriage. It was held that there was no explanation given by the appellant for remaining silent for a period of 12 years. On going through the petition as a whole, it appeared to the learned trial Court that the petition had been filed with concealment of certain facts from the Court. It was held that there was no explanation given by the appellant for remaining silent for a period of 12 years. On going through the petition as a whole, it appeared to the learned trial Court that the petition had been filed with concealment of certain facts from the Court. The petitioner was himself aware that the respondent was residing at California before her marriage. The conduct of the respondent in remaining silent for such a long period and now claiming desertion as a ground of cruelty (sic.-divorce) does not inspire confidence. Accordingly, the petition was dismissed. We have heard learned counsel for the appellant and gone through the impugned judgment and decree. A perusal of the petition, a copy of which is available with the learned counsel for the appellant shows that in para 2 of the petition, it is stated as regards the status of the parties that the appellant is mentioned as 'Sikh Unmarried' and the wife as 'Christian Unmarried'. Therefore, the petition ought to have been dismissed on the ground that it was not maintainable. In terms of Section 5 of the Act, the conditions for a Hindu Marriage have been provided. It is inter-alia envisaged that the marriage may be solemnized between any two Hindus, if the conditions as mentioned therein are fulfilled. Therefore, the marriage for the purposes of the Act is to be between two Hindus. The Hindu Marriage Act in terms of Section 2 applies to any person, who is a Hindu by religion and to any person, who is a Buddhist, Jain or Sikh by religion and to any other person domiciled in the territories to which this Act extends, who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with therein if the Act had not been passed. Therefore, it is essential that to solemnize marriage under the Hindu Marriage Act, the parties should be Hindus and if they are not, the marriage is not to be performed in accordance with the provisions of the Act although it may be performed in accordance with the provisions of the Special Marriage Act, 1954. Therefore, it is essential that to solemnize marriage under the Hindu Marriage Act, the parties should be Hindus and if they are not, the marriage is not to be performed in accordance with the provisions of the Act although it may be performed in accordance with the provisions of the Special Marriage Act, 1954. In the circumstances, the learned counsel for the appellant submits that in fact the marriage was a nullity. Therefore, it is prayed that he may be allowed to withdraw the appeal and he may also be granted permission to withdraw the initial petition filed for divorce so as to enable the appellant to seek appropriate remedy of nullity of the marriage by filing a necessary suit or petition on the same subject matter. The respondent was ex-parte before the learned trial Court. Therefore, we feel that notice need not be served on her in view of the provisions of Order XLI Rule 14(3) of the Code of Civil Procedure as applicable in the State of Punjab in pursuance of Notification No.G.S.R.39C.A.5/1908/S.12257 (w.e.f. 11.4.1975). In the facts and circumstances of the case, we are satisfied that there is a formal defect in the frame of the petition inasmuch as in terms of Section 5 of the Act a marriage under the Act may be solemnized between any two Hindus, if the conditions as mentioned therein are fulfilled. In terms of the petition that has been filed one of the parties is not a Hindu, which is a formal defect on account of which the petition must fail. Therefore, there are sufficient grounds for allowing the appellant to withdraw the petition as initially filed with liberty to file a fresh petition or suit for the same subject matter. Although, normally the initial petition filed before the learned trial Court, which has been decided in favour of the respondent is not to be permitted to be withdrawn so as to deprive the respondent the fruits of the decree that have ripened in her favour. However, in the present case, the respondent has not appeared and was ex-parte before the learned trial Court and we have already held that notice to her is not necessary. However, in the present case, the respondent has not appeared and was ex-parte before the learned trial Court and we have already held that notice to her is not necessary. Besides, no prejudice would be caused to the respondent in case the petition initially filed before the learned trial Court is permitted to be withdrawn as she had never appeared before the learned trial Court to contest the petition. Therefore, keeping in view the facts and circumstances of the case and on the pleadings of the appellant, it quite evident that the petition as filed by him is to fail. Therefore, it would be just and expedient to allow him to withdraw the petition initially filed in the learned trial Court and also the appeal with liberty to him to file a fresh petition or suit on the same subject matter. Accordingly, we allow the appellant to withdraw the appeal as also the petition initially filed before the learned District Judge at Ferozepur and grant him liberty to seek appropriate remedy in accordance with law or file a fresh petition or suit for the same subject matter.