Dipaleeben D/O Bharatbhai ... vs Pravinbhai Hamirbhai Makwana

     C/FA/5924/2019                                    ORDER DATED: 30/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 5924 of 2019

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            DIPALEEBEN D/O BHARATBHAI TRAMBAKLAL SHETH
                               Versus
                   PRAVINBHAI HAMIRBHAI MAKWANA
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Appellant
MS BHAKTI JOSHI, ADVOCATE for MS KD PARMAR(589) for the Defendant
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                           Date : 30/01/2023
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present appeal, the appellant herein - original applicant - wife has challenged the judgment and order dated 05.09.2019 passed by learned Principal Judge, Family Court, Surendranagar in Family Suit No. 55 of 2018, by which, petition under Section 13(1)(i-a) of the Hindu Marriage Act filed by present appellant - wife for obtaining decree of divorce came to be dismissed.

2. During pendency of this appeal, one affidavit filed by the father of the appellant namely Bharatbhai Trambaklal Sheth on 12.12.2022. By the said affidavit he has declared that the appellant is from Jain community and his daughter has taken 'Diksha' on 28.11.2022 and renounced the world. Para - 2 of the said affidavit reads as under:

"2. I state and submit that the Appellant - Dipalee is originally Jain by religion . I further state and submit that Page 1 of 3 Downloaded on : Mon Jan 30 20:50:42 IST 2023 C/FA/5924/2019 ORDER DATED: 30/01/2023 my daughter Dipalee has taken Diksha on 28.11.2022 and thereby has renounced the world by entering religion order. Before taking Diksha ceremony of Varshidanno Varghodo was held on 13.11.2022 at Wadhwan and on 27.11.2022 at Ahmedabad and Viday Samarambh was held on 26.11.2022. I further state and submit that Dipalee has taken Diksha on 28.11.2022 at Adhyatmnagari, Opposite Divyapath School, Navnitbhai Patel Road, Sola, Ahmedabad. Copy of Invitation Car of Diksha Ceremony of the Appellant is annexed herewith and marked as Annexure'B' to this petition. Copy of news-paper reporting with respect to Diksha ceremony of the Appellant is annexed herewith and marked as Annexure-'C' to this petition. Copy of photographs of Diksha ceremony of the Appellant is annexed herewith and marked as Annexure-'D Colly' to this petition."

3. By the aforesaid affidavit, the father of the appellant herein stated that he has no objection if the appeal is allowed and decree of divorce be drawn accordingly.

4. Today, an affidavit filed by respondent herein - husband has been filed. In the said affidavit, he has declared in Para - 1 to 3, which reads as under:

"1. I have perused the affidavit filed by the father of the Appellant declaring that Appellant has taken Diksha on 28.11.2022 and thereby has renounced the world by entering religion order. I have been read over and explained the said Affidavit in vernacular by my Advocate. I have also perused the Invitation Card of Diksha Ceremony of the Appellant, News-paper reporting with respect to Diksha ceremony of the Appellant and photographs of Diksha ceremony of the Appellant produced at Annexure-'B', 'C' and 'D' Colly to the said affidavit.

2. As per Section 13(1)(vi) of the Hindu Marriage Act, 1955, renouncing the world by entering religious order is a ground for divorce. It is submitted that there is an irrtrievable break down of our marriage life for more than

- 5 (five) years.

C/FA/5924/2019 ORDER DATED: 30/01/2023

3. Under the circumstances, I leave it to the Hon'ble Court to pass appropriate order in the peculier facts and circumstances of the case."

5. We have heard learned advocates appearing for the parties.

6. Section : 13(1)(vi) of the Hindu Marriage Act, 1955 reads as under:

"13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this 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 :-

           (i)     XXX   XXX    XXX
           (ii)    XXX   XXX    XXX
           (iii)   XXX   XXX    XXX
           (iv)    XXX   XXX    XXX
           (v)     XXX   XXX    XXX
           (vi)    has renounced the world by entering any religious order."

7. We have perused the affidavit filed by the father of the appellant herein as well as affidavit filed by the respondent husband. As per the aforesaid provision either party would be entitled for decree of divorce if another one renounce the world by entering religion order. Hence, appeal is allowed. The judgment and decree by learned Principal Judge, Family Court, Surendranagar in Family Suit No. 55 of 2018 is hereby quashed and set aside. Registry is hereby directed to prepare decree of divorce accordingly.

(A.J.DESAI, J) (RAJENDRA M. SAREEN,J) F.S.KAZI Page 3 of 3 Downloaded on : Mon Jan 30 20:50:42 IST 2023