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2018 DIGILAW 340 (CHH)

Preeti Singhania v. Banwari Lal Singhania

2018-06-26

MANINDRA MOHAN SHRIVASTAVA, RAJANI DUBEY

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JUDGMENT : MANINDRA MOHAN SHRIVASTAVA, J. 1. This appeal is directed against the impugned judgment and decree dated 20.06.2017 by which the appellant's appeal for grant of decree of divorce filed under Section 13(1)(A) of the Hindu Marriage Act, 1955 has been dismissed. 2. The appellant filed a suit before the Family Court seeking decree of divorce under Section 13(1)(A) of the Hindu Marriage Act primarily on the pleadings that earlier there had been a decree of judicial separation passed by the Family Court on 7th January 2016 in Civil Suit No. 470-A/2013. It was pleaded inter alia that ever since the decree passed by the Family Court on 7th January 2016, there has been no resumption of cohabitation as between the parties for a period of more than one year. The appellant further pleaded cruelty by the respondent during the period from the date of passing of the judgment/decree till the filing of the suit. Respondent remained ex-parte before the court below. 3. Learned Family Court dismissed the application by recording a finding that the appellant failed to prove the cruelty. 4. Assailing the correctness and validity of the impugned judgment/decree, counsel for the appellant argued that it is a suit filed by the appellant under Section 13(1)(A) and not a suit seeking decree of divorce on the ground of cruelty under Section 13(1)(a). 5. Counsel for the appellant argued that though in the plaint as also in the evidence, there are allegations of cruelty made by the appellant against the respondent, the suit in substance, was for grant of decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after the passing of decree of judicial separation in the proceeding in which they were parties. Learned Family Court misguided itself in treating it to be a claim for decree of divorce on the ground of cruelty. He would further submit that as there is sufficient amount of pleading and evidence on record which has not been opposed much less contested by the respondent/husband, the learned trial court ought to have granted a decree of divorce as provided under Section 13(1)(A) of the Act. 6. We have perused the records and bestowed our consideration to the submission made by the counsel for the appellant. 7. 6. We have perused the records and bestowed our consideration to the submission made by the counsel for the appellant. 7. The plaint averments made by the plaintiff goes to show that the appellant clearly made a specific averment of passing decree of judicial separation in the proceedings between the parties in Case No. 470-A/2013 on 07.01.2016. In para 3 of the plaint it has been quoted as follows: ^^3- ;g fd okfnuh ds }kjk U;k;ky; Á/kku U;k;k/kh'k dqVqEc U;k;ky; jk;iqj esa fnukad 06-09-2013 O;ŒoknŒ Øekad 470,@13 okLrs fookg foPNsn dh vkKfIr gsrq /kkjk 13¼1½¼d½ fgUnq fookg vf/kfu;e ds varxZr ÁLrqr fd;k x;k Fkk ftls fnukad 07-11-2016 dks vkaf'kd :i ls Lohdkj dj okfnuh dks U;kf;d i`Fkd~dj.k dh fMØh Ánku dh xbZA** Further averment in the para 12 is as below: ^^12- ;g fd fnukad 07-01-2016 ls ysdj vkt fnukad rd okfnuh ,oa Áfroknh dHkh Hkh lkFk ugha jgs gS vkSj u gh muds chp oSokfgd laca/k LFkkfir gq;s gS vkSj u gh Hkfo"; esa muds lkFk jgus dh dksbZ laHkkouk gSA ,slh fLFkfr esa okfnuh ,oa Áfroknh ds e/; laiUu fookg fnukad 15-02-1997 dks fookg foPNsn djus ds vfrfjDr vU; dksbZ fodYi ugha gSA** 8. In addition, the appellant also made averments regarding cruelty committed by the respondent. However the entire plaint allegations and the prayer made by the appellant shows that she sought a decree of divorce as provided under Section 13(1)(A) of the Hindu Marriage Act 1955. Learned trial court however did not frame any specific issue as to whether there had been resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of decree for judicial separation in a proceeding to which they were parties. 9. Appellant also did not pray before the court below for framing any such issue though it appears that the appellant sought a decree of divorce on the ground that there was a decree of judicial separation passed on 7th January 2016, and there has been no resumption of cohabitation by the parties for a period of one year from the date of passing of decree of judicial separation. Learned trial court ought to have confined only on this issue. 10. Present is a case where the respondent did not contest the suit. Learned trial court ought to have confined only on this issue. 10. Present is a case where the respondent did not contest the suit. This Court therefore would examine whether the appellant succeeded in making out a case for grant of a decree under Section 13(1)(A) of the Act on the basis of pleadings and evidence adduced by it. 11. As we have already referred to para 12 of the plaint, there is specific pleading made by the appellant that the appellant obtained a decree of judicial separation on 7th January 2016 against the respondent in case No. 470-A/13 a copy of the judgment is also on record which has been filed as Ex. P-5. 12. The appellant Preeti Singhania has examined herself as PW-1 and she has stated in para 3 of her evidence that the decree of judicial separation was granted to her on 7th January 2016. She further deposed that her husband has been making allegations of illicit relation with her father and in the month of December 2016, after the death of her father her husband again came and threatened her. She has further pleaded that on 15.02.2016, husband again came to her house, threatened and also assaulted her, report of which was lodged at police station. She has placed on record a copy of report Ex. P-1 and P-2. In the earlier suit respondent in his deposition before the court below has clearly stated that he is prepared to take divorce with the appellant. Lastly, it has been stated that after the decree of divorce, respondent is harassing the appellant by making accusation on her character and threatened her brother and sister-in-law of dire consequences to kill. Ashish Agrawal (PW-2) who is the brother of the appellant has also supported the case of the appellant by deposing that the respondent had been subjecting the appellant to cruelty. 13. The entire evidence of appellant Preeti Singhania (PW-1) which remains un-controverted proves that the appellant and respondent after having been granted a decree of judicial separation on 7th January 2016 did not resume cohabitation at any point of time. In the present case the suit itself was filed on 20th January 2017 i.e. after more than 1 year of passing of the decree of judicial separation earlier on 7th January 2016. 14. In the present case the suit itself was filed on 20th January 2017 i.e. after more than 1 year of passing of the decree of judicial separation earlier on 7th January 2016. 14. In view of the above consideration and from the pleadings and evidence on record, we are convinced that in the circumstances of the case, even if it is assumed that the appellant was not entitled for decree of divorce on the ground of cruelty, the case for grant of decree of divorce as provided under Section 13(1)(A) of the Act was definitely made out. 15. In the result the impugned judgment/decree is set aside and the appellant's appeal is allowed. Decree of divorce on the ground as provided under Section 13(1)(A) of the Act is granted in favour of the appellant and against the respondent.