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2017 DIGILAW 1001 (ALL)

RAHUL VERMA v. KIRAN VERMA

2017-04-13

DEVENDRA KUMAR ARORA, RAVINDRA NATH MISHRA II

body2017
JUDGMENT By the Court.—Supplementary-affidavit filed by the appellant is taken on record. 2. Heard Sri R.U. Verma, learned Counsel for the appellant and perused the record. 3. The instant appeal arisen out of the judgment and decree dated 23.12.2016 passed by the Principal Judge, Family Court, Lucknow in Case No. NIL of 2016 (Rahul Verma v. Smt. Kiran Verma and others), whereby the divorce petition of the appellant has been rejected on the ground that the divorce petition is barred by the provisions of Section 13(1)(ib) of the Hindu Marriage Act, 1955. 4. Submission of learned Counsel for the appellant is that the appellant had filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 against Smt. Kiran Verma (respondent No. 1) on various grounds including adulteration and desertion. While arguing the appeal, learned Counsel for the appellant invited attention of this Court towards paras 5, 14 and 15 of the plaint. In para 5, it has been averred that Smt. Kiran Verma went to the house of her brother Jagat Pal Verma (respondent No. 3) on the “Mundan” ceremony of his daughter and when the appellant and his father went to the house of respondent No. 3 in order to participate in the said ceremony, they saw that Smt. Kiran Verma is lying with Santosh Kumar Verma (respondent No. 2), who is the husband of her real elder sister, on the bed and on objection being raised, they apologize and says that they will never do such wrong. In para 14, it has been averred that respondent No. 3 lodged an FIR against the appellant and his family members on 12.7.2015 and thereafter her father and brother took her away on 21.12.2016 alongwith all belongings and, therefore, the cause of action arose on 12.7.2015 when the FIR was lodged and on 21.12.2016 when she left her in-laws house. 5. It has next been contended by learned Counsel for the appellant that the Principal Judge, Family Court, Lucknow while passing the order dated 23.12.2016 failed to consider the grounds taken by the appellant in the plaint and, therefore, the order dated 23.12.2016 is not sustainable in the eye of law and is deserve to be quashed. 6. 5. It has next been contended by learned Counsel for the appellant that the Principal Judge, Family Court, Lucknow while passing the order dated 23.12.2016 failed to consider the grounds taken by the appellant in the plaint and, therefore, the order dated 23.12.2016 is not sustainable in the eye of law and is deserve to be quashed. 6. In order to testify the submissions advanced by the learned Counsel for the parties, it would be apt to mention that desertion as one of the ground for divorce was added to Section 13 of the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976, i.e., which is reproduced as under : “13. Divorce—(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xxx xxx xxx (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;” 7. After the amendment, the ground for desertion for claiming divorce under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 requires that one of the spouse who has been deserted by the other for a continuous period of two years immediately preceding the date of the presentation of the divorce petition is entitled to a decree of divorce. 8. In general parlance, as per Oxford English Dictionary Vol-1 desertion means “The action of deserting, forsaking, or abandoning. Willful abandonment of one’s duty or obligations, (b) to live with one’s spouse. 2 The state of being deserted or abandoned.” Whereas the Halsbury’s Laws of England (3rd Edition), Vol. 12 page - 241 gives the meaning of desertion as under: “453. Meaning of desertion. In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of live involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” 9. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of live involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” 9. The prescription of the continuous period of desertion for not less than two years signifies the intention of desertion and conduct of the party, burdening the onus of strict proof on the petitioner who claims that the other party has deserted him/her. 10. The stand of the appellant in the present appeal is that though the main ground of filing the matrimonial suit before the trial Court was physical and mental cruelty but the learned Trial Court refused to entertain the matrimonial suit after considering the case of the appellant as desertion on wrong premise, therefore, the impugned order is liable to be set-aside. 11. A perusal of the impugned order reveals that the impugned order has been passed by the trial Court on placing reliance upon the averments made in para-14 of the plaint, which reads as under: ^^14- ;g fd okn dk dkj.k loZizFke fnukad 12&7&2015 dks rc mRiUu gqvk tc izfroknh la0&3 us oknh o mlds iwjs ifjokj ds fo:) izFke lwpuk fjiksVZ ntZ djok nh rFkk fnukad 21&12&2016 dks tc mlds firk o HkkbZ izfrokfnuh la0&1 dks oknh ds ?kj ls leLr diMs o tsojkr iqfyl ds le{k ysdj pyh x;h rc ls vkt rd fo|eku gSA** 12. From perusal of the aforesaid averments, it is clear that the appellant himself pleaded in the plaint that the cause of action in filing the suit had accrued on 21.12.2016 when respondent-wife has left the house of the appellant with her father and brother. It is not the case of the appellant-husband that the wife-respondent herein made cruelty upon the husband. In these backgrounds, the trial Court rightly observed that the matrimonial suit is barred by Section 13 (1) (i-b) of the Hindu Marriage Act and accordingly refused to entertain the suit. 13. It is not the case of the appellant-husband that the wife-respondent herein made cruelty upon the husband. In these backgrounds, the trial Court rightly observed that the matrimonial suit is barred by Section 13 (1) (i-b) of the Hindu Marriage Act and accordingly refused to entertain the suit. 13. On due consideration, this Court is of the view that Section 13 (1) (i-a) of the Hindu Marriage Act speaks that any marriage solemnized, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty, whereas Section 13 (1) (i-b) of the Hindu Marriage Act speaks that any marriage solemnized, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period not less than two years immediately preceding the presentation of the petition. In our opinion, the learned trial Court, after considering the pleadings of the plaint, has rightly came to the conclusion that the matrimonial suit is barred by Section Section 13 (1) (i-b) as there is no specific allegation in the plaint regarding adulterated life of respondent-wife and only mere lodging of an FIR by the brother of respondent-wife, it cannot be said to be a cause of action for obtaining a decree of divorce. The appellant himself stated in the plaint that the marriage between the appellant-husband and respondent-wife was solemnized on 23.2.2015 and till 20.12.2016 the respondent-wife remained with the husband-appellant whereas the suit for divorce was filed on 23.12.2016, therefore, the Family Court rightly dismissed the suit for divorce on the ground that the suit for divorce is barred by Section 13(1)(ib) of the Hindu Marriage Act. Thus, there is no illegality and infirmity in the impugned order, which is hereby approved. 14. The appeal is, therefore, dismissed.