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2018 DIGILAW 1475 (ALL)

Ashish Kumar Dwivedi v. Swati Tiwari

2018-07-04

ABHAI KUMAR, DEVENDRA KUMAR ARORA

body2018
JUDGMENT : 1. Heard learned Counsel for the appellant and perused the record. 2. The instant First Appeal has been preferred by Sri Ashish Kumar Dwivedi-appellant herein under Section 19(1) of the Family Courts Act read with Section 96 of the Code of Civil Procedure, 1908 against the judgment and order dated 26.05.2018, whereby the learned Principal Judge, Family Court, Lucknow has dismissed Misc. Case No. 39 of 2018 filed by the appellant under Section 13(1a) of the Hindu Marriage Act for dissolution of the marriage, on the ground that the plaint filed by the appellant for decree of divorce is not based on physical and mental cruelty rather it is based on desertion as provided in Section 13(1)(ib) of the Hindu Marriage Act by observing that the continuous period of two years has not reached and as such it is not entertainable in view of the provisions contained in Section 1(ib) of the Act. 3. It has been submitted by the learned Counsel for the appellant that the marriage between the appellant and the respondent was solemnized on 07.07.2016. After some time, the relationship between the spouses was not cordial. She insulted and abused the husband and other members of the family which translated into uncongenial atmosphere and the appellant suffered mentally and physically cruelty. It has also been submitted by the learned Counsel that at the time of consultation with the doctor, she did not take care the instructions of the doctor. In second week of December, 2017, she came at Lucknow with her elder brother and after 26.02.2018, she did not receive his phone calls. 4. It has further been submitted by the learned Counsel for the appellant that on 18.05.2018, the respondent came to his office and used abusive language which has caused an apprehension in his mind that it will be harmful and injurious for him to continue to live with the respondent. The respondent has sought the dissolution of marriage on the ground of cruelty as provided under Section 13(ia) of the Act but the Principal Judge, Family Court without considering the averments contained in the plaint has illegally and erroneously held that the appellant is seeking decree divorce on the ground of desertion. The respondent has sought the dissolution of marriage on the ground of cruelty as provided under Section 13(ia) of the Act but the Principal Judge, Family Court without considering the averments contained in the plaint has illegally and erroneously held that the appellant is seeking decree divorce on the ground of desertion. Thus, the Principal Judge, Family Court has committed gross illegality treating the same under Section 13(1b) of the Act and, therefore, the order dated 26.05.2018 is not sustainable in the eye of law and is deserve to be quashed. 5. In order to testify the submissions advanced by the learned Counsel for the appellant, it would be apt to mention that desertion as one of the grounds 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 (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;" 6. 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. 7. 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. 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." 8. 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. 9. 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. 10. From perusal of the plaint, it is crystal clear that the appellant-husband himself has pleaded in the plaint that the cause of action in filing the suit had accrued on 04.02.2018 when the respondent-wife has denied to live with the appellant. It also comes out from the plaint that the appellant-husband is interested in living with the respondent even after mental and physical cruelty. In these backgrounds, the Principal Judge, Family Court rightly observed that the plaint is barred by Section 13(1)(ib) of the Hindu Marriage Act and accordingly refused to entertain the plaint. 11. It also comes out from the plaint that the appellant-husband is interested in living with the respondent even after mental and physical cruelty. In these backgrounds, the Principal Judge, Family Court rightly observed that the plaint is barred by Section 13(1)(ib) of the Hindu Marriage Act and accordingly refused to entertain the plaint. 11. 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 Principal Judge, Family 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) of Hindu Marriage Act. Hence, no case for cruelty has been made by the husband-appellant and, therefore, there is no illegality and infirmity in the impugned order. 12. For the reasons aforesaid, we find no infirmity in the impugned judgment and the instant appeal is dismissed.