The Division Bench of Allahabad High Court, while dismissing a divorce appeal observed that it does not have a similar to that of Supreme Court under Article 142 and at present it remained an Appeal Court in terms of Section 19 of the Family Court Act, 1984.
Brief Facts:
The marriage between the parties was solemnized on 23.05.1980. They separated in 1992 when criminal proceedings had also been initiated by the wife on the grounds of dowry and cruelty. Subsequently, a settlement was reached between the parties to revive their marriage and the respondent-wife also agreed to withdraw the criminal charges instituted by her. The husband was acquitted from the charge of demand of dowry on 26.06.1995, but again on 03.07.1995, the respondent was turned away from her matrimonial home, and within two weeks, on 29.07.1995, the proceedings for divorce were initiated by the husband. The present appeal has been filed under Section 28 of the Hindu Marriage Act against the order passed by the Additional District Judge, wherein the divorce suit instituted by the appellant has been dismissed by the court.
Observations of the court:
The court stated that desertion could not be attributed to the wife when she had withdrawn criminal cases at the promise of revival of the matrimonial relationship but was turned away from the matrimonial home and further on the allegations of cruelty, the court stated that since the parties had cohabited for a very limited time since there would be no reason to consider any additional cruelty by the respondent-wife after the settlement had been signed by the parties.
The court held that cruelty and desertion were not proved by the appellant, and thus, it could not dissolve the marriage between the parties on the basis of the reliance placed by the appellant on the decision of the Apex Court in Prakshchandra Joshi v. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah, wherein where marriage between the parties was dissolved in exercise of jurisdiction under Article 142 of the Constitution of India. It held that such a power did not exist with the High Court in its jurisdiction as an Appellate Court under the Family Court Act, 1984.
The court stated that there can be no doubt a power does not exist to be exercised by this Court, and at present, it remains an Appeal Court in terms of Section 19 of the Family Court Act, 1984.
The decision of the Court:
The court dismissed the appeal.
Case Title: Sarvesh Kumar Sharma vs. Smt. Sarvesh Kumari Sharma
Coram: Hon’ble Mr Justice Saumitra Dayal Singh and Hon’ble Mr Justice Donadi Ramesh
Case No.: First Appeal No. - 715 of 2004
Advocate for the Petitioner: Radhey Shyam, Anil Kumar, Rajesh Kumar Shukla
Advocate for the Respondent: Vishwa Pratap Singh
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