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2016 DIGILAW 1193 (GUJ)

Rakshaben Manubhai Parmar v. Ronald

2016-06-28

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Present petition is filed by the present petitioner under the provisions of the Indian Divorce Act, 1869 as it stood then and has, inter-alia, prayed for a relief to confirm the judgment dated 30.1.1997 passed by the learned District Judge, Kheda at Nadiad in Regular Civil Suit No. 4 of 1995, whereby a decree came to be passed under the provisions of Section 19(2) of the Indian Divorce Act and the marriage between the petitioner and the respondent were ordered to be dissolved as provided under Section 19of the Indian Divorce Act. 2. Following facts emerge from the record of the petition:-- "That, the petitioner and the respondent got married on 9.1.1995. However, after their marriage, they realized that both are closely related as brother and sister and hence, they filed an application being Application No. 4 of 1995 before the District Court, Kheda with a prayer to declare the marriage between the parties as null and void as per Section 19(2) of the Indian Divorce Act, 1969. The said application came to be allowed by the judgment and decree dated 30.1.1997 by the learned District Judge, Nadiad. As per the provisions of Rule 13 of the Divorce (District Court) Rules, 1929, the said judgment and decree was required to be sent to this Court for its confirmation and the said fact is also observed by the learned District Judge in the judgment and decree dated 30.1.1997." 3. From the facts narrated in the petition, it is stated that the petitioner thereafter married to one Ignas Francis Macwan on 7.1.1996 and has daughter named Anis who is at present about 18 years old. The record indicates that the said marriage also came to be dissolved as per the judgment and decree dated 24.1.2013 passed by the learned 4th Additional District Judge, Bharuch in Civil Misc. Application No. 351 of 2012. The record indicates that thereafter, the petitioner married one Julius Rathod on 22.4.2014. It is averred in the petition that the husband of the petitioner stays in USA and in order to apply for Visa to travel and settle in U.S. when the petitioner inquired about certified copy of the decree of divorce of the case on hand i.e. Regular Civil Suit No. 4 of 1995, the petitioner was informed that the said judgment and decree was never sent to this Court for confirmation. It further appears that therefore, the petitioner preferred an application before the learned District Judge, Kheda at Nadiad with a prayer that the same may be sent to this Court for confirmation. The record indicates that by an order dated 17.12.2015, the learned District Judge, Kheda passed an order to send the papers along with the judgment and decree to this Court. It transpires from the facts narrated that as there was no proceedings pending before this Court, record and proceedings, though sent after the order dated 17.12.2015, sent back at the instance of the Registry of this Court. Ultimately, record and proceedings have been received by the Registry of this Court on 6.6.2016. 4. This Court issued notice vide order dated 5.5.2016. Though served, no one appears for the respondent. 5. Heard Mr. Asthavadi, learned advocate for the petitioner. Mr. Asthavadi has taken this Court through the record of this petition and has submitted that as the learned District Judge, Kheda did not send original judgment and decree dated 30.1.1997 passed by the learned District Court in Regular Civil Suit No. 4 of 1995, the petitioner filed an application with a prayer to send a copy of the judgment and decree dated 30.1.1997 for confirmation. However, as contended in the application, the same were recently received. Mr. Asthavadi submitted that as per the said judgment and decree, it is quite clear that the marriage between the applicant and the respondent came to be dissolved for the reasons which are mentioned in the said judgment and decree and in view of the same, the same may be confirmed. It is submitted that the petitioner now intends to migrate to USA as her present husband stays at U.S. and therefore, appropriate orders be passed. 6. Even though the notice was served, the respondent did not appear before this Court and therefore, a fresh notice was issued to the respondent making it returnable on 20.6.2016. Even though served, the respondent has preferred not to appear and therefore, this Court thought it fit to examine the matter on merits even in absence of the respondent as it has to be presumed that the respondent is not interested after a period of more than one decade. On perusal of the judgment and decree rendered by the District Court, Kheda at Nadiad in Regular Civil Suit No. 4 of 1995 being Exh. On perusal of the judgment and decree rendered by the District Court, Kheda at Nadiad in Regular Civil Suit No. 4 of 1995 being Exh. 17 of the said suit considering the issues which were raised by the learned District Judge at Exh. 9 in the said suit, it clearly appears that the learned District Judge has come to the conclusion that the parties are admittedly Christian. It appears that the petitioner and the respondent are relatives and in fact the respondent herein has admitted the said fact in the written statement with a further contention that the marriage being null and void, the same may be dissolved as prayed for. It is also observed that in habeas corpus petition being Special Criminal Application No. 1277 of 1995 filed before this Court, the petitioner has expressed her wish to go with the parents. 7. As provided under Section 20 of the Indian Divorce Act, 1869, decree of order of dissolution of marriage is subject to confirmation by this Court. Considering the provisions of relevant sections of the Indian Divorce Act, 1869 and on perusal of the record, it clearly appears that the marriage between the petitioner and the respondent which was solemnized on 9.1.1995 has been dissolved in accordance with law and in peculiar facts and circumstances of the case, the same deserves to be confirmed as provided under Section 20 of the Indian Divorce Act, 1869. It is rightly contended by the learned advocate for the petitioner that record and proceedings of Regular Civil Suit No. 4 of 1995, though sent was not accepted by the Registry, as no proceedings were pending at that moment and that by a communication dated 3.6.2016, the same has been sent for confirmation which is received by the Registry of this Court on 6.6.2016. 8. Resultantly, the petition is allowed as prayed for in Paragraph 21(a). The judgment and decree dated 30.1.1997 passed in Regular Civil Suit No. 4 of 1995 by the learned District Judge, Kheda at Nadiad is hereby confirmed. Rule is made absolute. There shall be no order as to costs. Record and proceedings may be sent back to the concerned Court forthwith.