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2019 DIGILAW 2590 (RAJ)

Shilpa Singhal v. Rakesh Singhal

2019-09-24

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT 1. This appeal is directed against order dated 7.6.18 passed by the Family Court, Sri Ganganagar whereby an application preferred by both the appellant and the respondent together for dissolution of marriage by decree of divorce under Section 13B of the Hindu Marriage Act, 1955 (for short "the Act of 1955") has been rejected. 2. The appeal reported to be barred by limitation for 22 days is accompanied by an application under Section 5 of Limitation Act. 3. For the reasons stated in the application, the application is allowed. Delay in filing the appeal is condoned. 4. The facts relevant giving rise to the present appeal are that the appellant and the respondent entered into marriage in the year 2013 as per Hindu rites and rituals. The differences surfaced within a year of marriage, which resulted in separation of the spouses and the appellant-wife left the company of respondent-husband on 21.8.14 and thereafter, they never lived together. Finally, on 3.2.18, both the spouses preferred an application under Section 13B of the Act of 1955 seeking decree of divorce by mutual consent. 5. During the course of settlement proceedings before the Family Court, the appellant-wife revealed that she has already entered into second marriage. The Family Court opined that the second marriage is void by virtue of provisions of Section 5 of the Act of 1955 and thus, the appellant while making an application seeking divorce by mutual consent has attempted to procure validity to second marriage. The Family Court observed that the second marriage entered into by the appellant-wife having a spouse living, besides being void by virtue of provisions of Section 5 (i) of the Act of 1955, is an offence punishable under Section 17 of the Act of 1955 read with Sections 494 and 495 IPC and the respondent-husband who had knowledge of the second marriage is also liable for abetting the offence under Section 109 IPC. The Court opined that the acceptance of the application under Section 13B will amount to permitting the appellant to take benefit of her own wrong which is not permissible by virtue of provisions of Section 23A of the Act of 1955. Accordingly, the application preferred by the parties seeking divorce by mutual consent, has been dismissed. Hence, this appeal. 6. Pursuant to order dated 4.9.19 passed by this Court, the parties are present in person. Accordingly, the application preferred by the parties seeking divorce by mutual consent, has been dismissed. Hence, this appeal. 6. Pursuant to order dated 4.9.19 passed by this Court, the parties are present in person. We have conferred with them in chamber. The parties have stated in unequivocal terms that they want their marriage to be dissolved by mutual consent. The husband-Rakesh Singhal stated that he has no grievance regarding his wife entering into second marriage. 7. Learned counsel appearing for the parties submit that when the parties are agreeable for dissolution of marriage by mutual consent, there is no reason why the factum of the appellant-wife entering into second marriage should come in their way. Learned counsel appearing for the respondenthusband submitted that in proceedings under Section 13B of the Act of 1955, the question of the respondent making any counter claim for any relief as specified, does not arise and therefore, the provisions of Section 23A are not attracted in the matter. Learned counsel submitted that the respondenthusband is not inclined to take any proceedings against the appellant-wife for offence alleged to have been committed by her and thus, the Family Court was justified in refusing the decree of divorce by mutual consent. 8. We have considered the rival submissions and perused the material on record. 9. Indisputably, the parties to the marriage applied for dissolution of marriage together on the ground that they have been living separately for a period about three and half years; they have not been able to live together and have mutually agreed that marriage should be dissolved. 10. A perusal of the order impugned reveals that during the reconciliation proceedings, the appellant-wife disclosed that she has entered into second marriage and therefore, the Family Court has rejected the application preferred with observations as noticed above. 11. Undoubtedly, as per provisions of Section 5 (i) of the Act of 1955, the marriage between two Hindus may be solemnized only if neither party has a spouse living at the time of marriage and therefore, the appellant-wife could not have entered into second marriage during the subsistence of the marriage, which is sought to be dissolved by mutual consent. Undoubtedly, as per provisions of Section 5 (i) of the Act of 1955, the marriage between two Hindus may be solemnized only if neither party has a spouse living at the time of marriage and therefore, the appellant-wife could not have entered into second marriage during the subsistence of the marriage, which is sought to be dissolved by mutual consent. It is also true that by virtue of provisions of Section 11 of the Act of 1955, the marriage solemnized in contravention of clause (i) of Section 5 of the Act of 1955, shall be null and void and on a petition presented by either party thereto against the other party, be so declared by a decree of nullity. Further, as per provisions of Section 17 of the Act of 1955, any marriage between two Hindus solemnized after commencement of the Act of 1955, is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 & 495 IPC shall apply accordingly. 12. But then, the mere statement of the wife during the conciliation proceedings is not sufficient to draw a conclusion that the second marriage entered into by the wife was performed with proper ceremonies which are essential for prosecution of the wife or husband, as the case may be, for offence under Section 494 IPC. Merely on the basis of revelation of the fact in this regard by the wife during conciliation proceedings, no definite conclusion could have been drawn by the Family Court that the appellant-wife has committed an offence under Section 494 IPC. Further, the Family Court has proceeded with the presumption that the husband had given the consent for second marriage and thus, he is also liable for abetment of an offence. 13. In any case, if an application preferred by the husband and wife together for dissolution of marriage by mutual consent, is granted by the Family Court, the offence under Section 494 IPC if any committed by the appellant-wife, shall not stand obliterated. Moreover, the offence under Section 494 is non-cognizable, bailable and compoundable by the court at the instance of the husband or wife of the person so marrying. Further, in case of bigamy only person aggrieved can complain and admittedly, nobody has filed complaint in this regard till this date. 14. Moreover, the offence under Section 494 is non-cognizable, bailable and compoundable by the court at the instance of the husband or wife of the person so marrying. Further, in case of bigamy only person aggrieved can complain and admittedly, nobody has filed complaint in this regard till this date. 14. Coming to Section 23A, it is noticed that it only provides that in any proceedings for divorce or judicial separation or restitution of conjugal rights, respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion but also make a counter claim for any relief under the Act on that ground and if the petitioner's adultery, cruelty or desertion is proved, the court may give the respondent any relief under the Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground. Apparently, in the instant case, where the decree for dissolution of marriage was sought by the parties by mutual consent and not under Section 13 of the Act of 1955, the situation contemplated under Section 23A was not at all existing and thus, it is not understandable as to how the provisions of Section 23A of the Act could have been invoked by the Family Court so as to deny the relief claimed by the parties to the marriage for divorce by mutual consent. 15. In the considered opinion of this court, the dissolution of marriage between the parties by mutual consent shall in no manner obliterate the offence if any already committed and therefore, if the parties are not in position to live together and want to dissolve the marriage by mutual consent, there is absolutely no reason why the marriage should not be dissolved. If the wife has committed an offence, the law will take its own course but on that account, the husband cannot be compelled to continue with the marriage when admittedly, matrimonial relationship between the parties have broken down irretrievably and they have agreed to dissolve the marriage by mutual consent. 16. It is noticed that the parties are not living together since 21.8.14. The petition seeking divorce by mutual consent under Section 13B was filed by the parties before the Family Court on 3.2.18, which was dismissed by the order impugned dated 7.6.18. 16. It is noticed that the parties are not living together since 21.8.14. The petition seeking divorce by mutual consent under Section 13B was filed by the parties before the Family Court on 3.2.18, which was dismissed by the order impugned dated 7.6.18. Thus, keeping in view the fact that both the spouses are living separately for last more than five years, we are of the considered opinion that the marriage between them deserves to be dissolved by a decree of divorce by mutual consent in terms of provisions of Section 13 B of the Act of 1955. 17. Accordingly, the is allowed. The order impugned passed by the Family Court, Sri Ganganagar in Case No.73/18 is set aside. The marriage between the parties is ordered to be dissolved by decree of divorce under Section 13B of the Act of 1955. No order as to costs.