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2017 DIGILAW 965 (ALL)

Ripunj Agarwal v. Aakarshi Agarwal

2017-04-10

DEVENDRA KUMAR ARORA, RAVINDRA NATH MISHRA II

body2017
JUDGMENT 1. Vakalatnama filed on behalf of respondent by Mr. Manish Bajpai, Advocate and Mr. Gaurav Tripathi, Advocate, is taken on record. 2. Heard Mr. S.B. Sharma, learned Counsel for the appellant and Mr. Manish Bajpai, learned Counsel for the respondent. 3. The present appeal under Section 19 of the Family Courts Act, 1984 arises out of the judgment and order dated 7.11.2016 passed by the Principal Judge, Family Court, Lucknow in Regular Suit No. NIL of 2016: Ripunj Agarwal v. Smt. Aakarshi Agarwal, whereby the learned trial Court refused to entertain the divorce suit filed by the appellant husband on the ground that the same has been barred by Section 13 (1)(i-b) of the Hindu Marriage Act. 4. The facts giving rise to this appeal are as under: Admittedly, the marriage between Ripunj Agarwal-appellant husband and Smt. Aakarshi Agarwal respondent-wife was solemnised on 16.2.2015 as per Hindu customs at Hotel Mukund Madhav, Daroga Khera, Kanpur Road, Lucknow. 5. According to the appellant, after marriage, he came to know about mental sickness of his wife (respondent herein), who even after treatment could not be recovered from mental illness. It is said that on 29.10.2016, respondent-wife, after quarreling with the appellant-husband, left the house (at Ghaziabad) with her father and brother along with her belongings and uttered that she has taken divorce and would not reside in his company. Thereafter, the appellant has filed a suit for divorce under Section 13 of the Hindu Marriage Act, which was registered as Regular Suit No. NIL of 2016, before the Principal Judge, Family Court, Lucknow, who, vide order dated 7.11.2016, refused to entertain the matrimonial suit on the ground that the suit is barred by Section 13 (1)(i-b) of the Hindu Marriage Act. Feeling aggrieved, the present appeal has been filed by the appellant husband. 6. Counsel for the appellant has submitted that the appellant has instituted the suit for divorce on the ground of physical and mental cruelty and not on desertion but the learned trial Court erred in interpreting the word ‘cruelty’ and merely relying upon the word ‘desertion’, the trial Court erred in refusing to entertain the matrimonial suit filed by the appellant on the ground that the same is barred by Section 13 (1)(i-b) of the Hindu Marriage Act. It has also been stated that the appellant, in para-10 of the plaint, has specially stated that mental and physical cruelty committed by the respondent on various dates is the cause of action but the learned trial Court, without considering the averments made in the plaint, has wrongly came to the conclusion that the suit is barred by Section 13 (1)(i-b) of the Hindu Marriage Act. Therefore, the impugned order is liable to be set-aside. 7. Per contra, learned Counsel for the respondent-wife has submitted that there is no illegality and infirmity in the impugned order as the appellant himself had made assertion in the plaint that the cause of action in filing the suit for divorce accrued on 29.10.2016 and the marriage of the appellant and respondent was solemnized on 16.2.2015 i.e. within two years. Thus, the findings recorded by the learned trial Court that the matrimonial suit is barred by Section 13 (1)(i-b) of the Hindu Marriage Act is absolutely reasonable, just and in accordance with law. 8. We have heard learned Counsel for the parties and perused the record. 9. 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;” 10. 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. 11. 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. 11. 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.” 12. 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. 13. 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. 14. 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-10 of the plaint, which reads as under: Þ10- ;g fd mDr okn dk dkj.k fHkUu&fHkUu frfFk;ksa ls gksrs gq;s 29-10-2016 dks mRiUu gqvk tc foi{kh us ?kksj ekufld izrkMuk o csbZTTkrh djds] vius iwjs lkeku ds lkFk vius firk o HkkbZ ds lkFk pyh x;h vkSj rcls yxkrkj fo|eku gSAß 15. 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 29.10.2016 when respondent-wife has left the house of the appellant with her father and brother but the suit was not filed by the husband-appellant when the wife-respondent herein made cruelty upon the husband. In these backgrounds, the trial Court came to the conclusion that the said suit did not come within the zone of physical and mental cruelty coupled with desertion but falls within the zone of desertion, therefore, the matrimonial suit is barred by Section 13 (1)(i-b) of the Hindu Marriage Act and accordingly refused to entertain the suit by the trial Court. 16. 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 13 (1)(i-b) insofar as the marriage between the appellant-husband and respondent-wife was solemnized on 16.2.2015 and till 28.10.2016 during which the respondent-wife remained with the husband-appellant, no case for cruelty has been made by the husband-appellant but the matrimonial suit was filed before the learned trial Court when the wife-respondent left appellant’s house on 29.10.2016. Thus, there is no illegality and infirmity in the impugned order. 17. The appeal is, therefore, dismissed. 18. The appeal is dismissed vide order of date passed on separate sheets.