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2018 DIGILAW 1925 (RAJ)

Udi Kumari Purbia v. Shankar Lal Purbia

2018-09-14

PRADEEP NANDRAJOG, PUSHPENDRA SINGH BHATI

body2018
JUDGMENT : PRADEEP NANDRAJOG, J. Civil Misc. Application No. 380/2018 and Civil Misc. Application No. 3305/2017: 1. The respondents have refused to accept notice issued by this Court and thus we proceed ex-parte against the respondents. 2. Impugned judgment shows that even before the trial Court the respondents chose not to appear and the decision dated 08.06.2017 has been pronounced ex-parte. 3. For the reasons mentioned in the Civil Misc. Application No. 380/2018, delay of 58 days in filing the appeal is condoned. 4. The application is allowed. 5. The appellant sought a decree of divorce against the first respondent by filing a petition on 19.10.2016. She invoked Section 13 of the Hindu Marriage Act, 1955. She pleaded that the marriage between the parties was solemnized in the year 1996. She pleaded that on 14.03.2004 a customary divorce took place evidenced by a written settlement. She pleaded that after the customary divorce her husband married Smt. Kamla, impleaded as respondent No. 2. She pleaded that the parties never cohabited as husband and wife. 6. Unfortunately, for the appellant the counsel who drafted the petition did not highlight that when the appellant presented the petition she was 27 years of age and marriage solemnized in the year 1996 would establish that she was about 7 years of age when the marriage was solemnized and that when the parties executed a document of customary divorce in the year 2004 she was still a minor. 7. Denying divorce to the appellant the reasoning of the learned Judge, Family Court is interesting. In paragraph 9 of the impugned judgment the learned Judge has opined that if as claimed by the appellant, and proved through Exhibit-1, the marriage was annulled by the parties by consent on 14.03.2004, where was the question of the appellant being entitled to annulment of the marriage by the Court. The extended limb of the reasoning is that if the agreement dated 14.03.2004 is to be treated as a mutual agreement between the parties to break the matrimonial bond, a petition under Section 13B of the Hindu Marriage Act, 1955 had to be filed. The extended limb of the reasoning is that if the agreement dated 14.03.2004 is to be treated as a mutual agreement between the parties to break the matrimonial bond, a petition under Section 13B of the Hindu Marriage Act, 1955 had to be filed. With respect to the husband marrying Kamla, proved through Exhibit-2, a Bhamasha Card which show that the first respondent was married with second respondent, learned Judge has opined that if the appellant herself gave permission to her husband to re-marry that would not be a ground to grant divorce. Third reasoning in the paragraph 11 of the impugned decision is that though the evidence establishes the respondent parting company with the appellant but that would not be sufficient in law. It had to be established that withdrawal from the consortium was without a justifiable cause. 8. The problem with the impugned decision is that it did not focus on the central issue. The central issue was that the respondent had parted company with the appellant by consent of both parties and thus it could be said that there was denial of sex by each couple to the other by consent. 9. The learned Judge should have decided the matter pragmatically. It was a case where the appellant got married with the respondent when she was a minor. When she was a minor but the respondent became major a mutual settlement of separation was executed between the parties. The respondent acted under the same and re-married. Thus, de-facto separation akin to a customary divorce had taken place. What the appellant was seeking was a de-jure colour to what had happened de-facto. 10. Under the circumstances in view of the evidence noted hereinabove, the appeal is allowed. The appellant is granted a decree of divorce annulling the marriage between the appellant and respondent No. 1.