A division bench of the Bombay High Court comprising of Hon’ble Justice R.D. Dhanuka and Gauri Godse held that a family court cannot grant a divorce decree solely based on the assumption that the marriage is dissolved in the hearts and minds of the parties if there is no evidence presented or allegations withdrawn by the parties involved. The bench also set aside the impugned judgment and decree of divorce as it was passed in contrary to section 151 of CPC.
Brief Facts:
The applicant had filed this appeal under Section 19 of the Family Court Act, 1984 to challenge the impugned Judgment and decree dated 17th February 2022, whereby the marriage between the Petitioner and the Respondent is dissolved under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
Contentions of the Applicant:
The learned Counsel for the Applicant submitted that even though there were serious allegations of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the Respondent, which were disputed by the Respondent in the written statement and also in the Application filed by the Respondent for a decree of divorce on admission, the learned Family Court passed a decree for divorce.
Contentions for the Respondent:
The learned counsel for the Respondent on the other hand submitted that the marriage between both parties was severed and not reconciled for quite sometime. He relied upon Order 12 Rule 6 of the Code of Civil Procedure, 1908 (“CPC”) and also Section 151 of CPC and submitted that Family Court was justified in invoking Section 151 of CPC and passing a decree on admission under Order 12 Rule 6(2) of CPC. Learned counsel for the Respondent also placed reliance on Section 23 of the Hindu Marriage Act, 1955, and submitted that Family Court has wide power to pass a decree of divorce if the Family Court is satisfied that any of the grounds for granting relief exist whether the proceedings are defended or not by any of the parties.
Observations of the Court:
This Court observed that the Appellant shall not be the wife of the Respondent after passing a decree of divorce, thus the order of maintenance and permanent alimony cannot be passed in favor of the Appellant after passing a decree of divorce. It is thus clear that the Appellant has not submitted to the decree of divorce under Order 12 Rule 6 of the Civil Procedure Code, 1908.
Further, a perusal of the decree passed by the Family Court clearly indicated that though the Family Court has taken cognizance of Section 151 of CPC which provides for the inherent jurisdiction of the Court when there is no specific provision for passing such an order, the Family Court has passed the decree of divorce contrary to Section 151 of CPC by assuming that the Appellant and the Respondent are intending to separate as marriage has been dissolved in their mind and heart. None of the parties have led any evidence. In view of the fact that there is a specific provision for passing decree under Order 12 Rule 6 of CPC on satisfaction of conditions provided under the said provision, this Court held that the Family Court could not have invoked Section 151 of CPC.
The decision of the Court:
The Bombay High Court, allowing the application set aside the impugned Judgment and decree of divorce dated 17th February and directed the family court to hear the matter on merit.
Case Title: Mansi Bhavin Dharani v. Bhavin Jagdish Dharani
Coram: Hon’ble Justice R.D. Dhanuka and Gauri Godse
Case no.: FAMILY COURT APPEAL NO.24 OF 2022
Advocate for the Applicant: Mr. Krishna Holambe Patil
Advocate for the Respondent: Mr. Abhishek L. Tripathi
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