C/FA/378/2023 ORDER DATED: 08/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 378 of 2023
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CHINTAN PARIMAL VYAS
Versus
NA
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Appearance:
MR KAUSHAL D PANDYA(2905) for the Appellant(s) No. 1,2
MR. NILAY A THAKER(7275) for the Appellant(s) No. 1,2
NONE for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 08/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeal filed under Section-19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, the appellants - original petitioners have challenged the judgment and order dated 01.10.2022 passed by learned Principal Judge, Family Court, Vadodara in Family Suit No. 169 of 2022, by which, learned Family Court Judge dismissed the petition filed by present appellants for decree of dissolution of marriage under Section 13(B) of the Hindu Marriage Act, 1955.
2. The appeal was listed for hearing today. Appellants have remained present before this Court. Appellant No.1 is Page 1 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023 C/FA/378/2023 ORDER DATED: 08/02/2023 represented by Mr. Kaushal Pandya, learned advocate whereas the appellant No.2 is represented by Mr.Nilay Thaker, learned advocate. Both the learned advocates have identified their clients. Both the learned advocates have produced affidavit dated 25.11.2022 filed by appellant No.1 and affidavit dated 06.12.2022 filed by appellant No.2 as well as xerox copies of Aadhar Card as well as Pan Card of Appellant No.1 and xerox copy of Aadhar Card of Appellant No.2 duly signed by the parties, which are taken on record.
3. With consent of the respective parties, this appeal is taken up for final hearing in the chamber.
4. Short facts arise from the record are as under: 4.1. That the marriage between present appellants was solemnized on 27.02.2020 at Vadodara as per Hindu rites and customs of their community. The marriage of the appellants was duly registered before Vadodara Mahanagar Seva Sadan at Serial No.04754 on 30.07.2020. After their marriage, both the appellants started residing together initially at Vadodara and thereafter, they shifted to Pune. After some time, they found that they are unable to carry further their matrimonial life and Page 2 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023 C/FA/378/2023 ORDER DATED: 08/02/2023 therefore, they separated and started living separately since January, 2021. On completion of one year of separation, a petition under Section 13(B) of the Hindu Marriage Act came to be filed by the appellants on 17.02.2022 before learned Family Court, Vadodara and requested to pass a decree of dissolution of marriage, which was solemnized on 27.02.2020. Both the appellants appeared before learned Family Court Judge and have deposed that both of them are residing separately since January, 2021 and therefore, a decree for dissolution of marriage may be passed.
4.2. Learned Family Court Judge dismissed the petition only on the ground that the address of both the appellants shown in the cause title of the petition is same i.e. Pune, and therefore, learned Family Court Judge did not accept the say of the appellants that they are residing separately and as per the provision of Section 13(B) of the Hindu Marriage Act, the appellants are not entitled to get the decree of divorce. 4.3. Hence, this appeal.
5. Appellant No.1 was asked certain questions about the marriage and fact about the period of their separation. It was also Page 3 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023 C/FA/378/2023 ORDER DATED: 08/02/2023 inquired that whether there is possibility of settlement or not. In response to the same, appellant No.1 namely Chintan Parimal Vyas has categorically stated that both of them are residing separately since January, 2021 and thereafter, they have never stayed together or cohabited or consummated their marriage, which was solemnized on 27.02.2020 since January, 2021. Appellant No.1 has stated before this Court on affidavit dated 25.11.2022 sworn at Vadodara, which reads as under: "I, Chintan Parimal Vyas, Age 32 years, the appellant No. 1, residing at the address mentioned in the cause title of the First Appeal do hereby solemnly affirm and state as under:
1). That I and appellant No. 2 have filed above-mentioned first appeal to challenge the judgment and decree dated 01.10.2022 passed by the Ld. Family Court, Vadodara in Family Suit No. 169/2022, and to dissolve the marriage by mutual consent u/s. 13(B) of the Hindu Marriage Act, 1955.
2). That I have gone through the averments made in the memo of first appeal and do agree with the facts mentioned in the first appeal.
3). That I and appellant no. 2 are separately living since January, 2021. We are unable to live together therefore, we have mutually agreed that marriage should be dissolved.
4). That we have tkaen decision for divorce by mutual consent with conscious mind and without any external force and independently."
6. Similarly, appellant No. 2 namely Chaitali W/o Chintan Parimal Vyas and D/o Ketanbhai Gajendrabhai Joshi was asked similar question. She has also categorically stated that they have Page 4 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023 C/FA/378/2023 ORDER DATED: 08/02/2023 never stayed together or cohabited or consummated the marriage since January, 2021. Appellant No. 2 has stated before this Court on affidavit dated 06.12.2022 sworn at Vadodara, which reads as under:
I, Chaitali W/o Chintan Parimal Vyas, D/o Ketanbhai Gajendrabhai Joshi, Age 30 years, Occupation : Service, Female, the appellant No. 2, residing at : D-202, Pandit Dindayal Upadhyay Housing Board, Bharuch, residing at the address mentioned in the cause title of the First Appeal do hereby solemnly affirm and state as under:
1). That I and appellant No. 1 have filed above-mentioned first appeal to challenge the judgment and decree dated 01.10.2022 passed by the Ld. Family Court, Vadodara in Family Suit No. 169/2022, and to dissolve the marriage by mutual consent u/s. 13(B) of the Hindu Marriage Act, 1955.
2). That I have gone through the averments made in the memo of first appeal and do agree with the facts mentioned in the first appeal.
3). That I and appellant no. 1 are separately living since January, 2021. We are unable to live together therefore, we have mutually agreed that marriage should be dissolved.
4). That we have tkaen decision for divorce by mutual consent with conscious mind and without any external force and independently.
7. Apart from this, we found that there is no possibility of reunion of the appellants and therefore, we accept this appeal. The judgment and order dated 01.10.2022 passed by learned Principal Judge, Family Court, Vadodara is hereby quashed and set aside. The Family Suit No. 169 of 2022 filed by the appellants before the Court of Principal Judge, Family Court, Page 5 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023 C/FA/378/2023 ORDER DATED: 08/02/2023 Vadodara is hereby allowed. The marriage of the appellants solemnized on 27.02.2020 at Vadodara is hereby dissolved. Registry is directed to draw the decree of dissolution of marriage accordingly.
8. The Registry is directed to send back the Record and proceedings of the Family Suit No. 169 of 2022 filed before the Court of Principal Judge, Family Court, Vadodara, if received.
(A.J.DESAI, J) (RAJENDRA M. SAREEN,J) F.S.KAZI Page 6 of 6 Downloaded on : Thu Feb 09 20:48:11 IST 2023