Mallika Pandey vs Principal Judge Family Court At ...
2017 Latest Caselaw 4011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
                                                                                                                  A.F.R.
 
Court No. - 17
 
Case :- FIRST APPEAL No. - 123 of 2017
 
Appellant :- Mallika Pandey
 
Respondent :- Principal Judge Family Court At Lucknow & Anr.
 
Counsel for Appellant :- Maneesh Kumar Singh
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

Heard learned counsel for the appellant and perused the judgment and order dated 03.08.2017 passed by the Principal Judge, Family Court, Lucknow whereby the Regular Suit No. Nil of 2017 preferred by the appellant has been rejected at the admission stage itself on the ground that the case does not relate to cruelty rather pertains to desertion and as such is barred by Section 13(1) (1B) of the Hindu Marriage Act, 1955 (hereinafter referred to as ' Act of 1955').

Considering the apparent error on record which is legally unsustainable and as such issuance of notice to the respondent no. 2 is hereby dispensed with.

The factual matrix of the case is that the marriage of the appellant was solemnized with respondent no. 2-Arun Kumar Pandey on 30.11.2012, as per Hindu rites and rituals, when appellant reached her matrimonial home, she came to know that the marriage was solemnized by deceit and giving wrong impression with respect to profession of the respondent no. 2. Further, from the very beginning of her married life, respondent no. 2 was pressurizing her to bring money from her parents. Initially, she fulfilled the financial demands of respondent no. 2, but with the passage of time she felt herself unable to fulfill her husband's demand, she stopped fulfilling the unnecessary demands of the respondent no. 2, which resulted in physical and mental torture by respondent no. 2 and ultimately, she left her matrimonial house.

It has also been averred that in the month of January, 2016, respondent no. 2 came to appellant's parental house and apologized for his conduct and therefore she returned to her matrimonial house to live with her husband. Unfortunately, again she was subjected to mental and physical torture which was of such an extent that it compelled the appellant to leave the matrimonial house with her minor daughter in December, 2016. It has also come on record that on 23.02.2017, when marriage of her husband's sister (Nand) was to be solemnized, the respondent no. 2 again apologized for his behavior and persuaded her to accompany him. So, the appellant being a faithful and wanted to live peacefully believed the assurances and started living but the relations started to grow strain again due to continuous mental and physical torture as such the appellant when became unable to bear torture left for her parental house.

Later on, she preferred the aforesaid suit for dissolution of marriage under Section 13 of the Act of 1955 on the ground of cruelty and narrated the extent of cruelty extended to her by the husband in the plaint. The appellant has averred that the respondent continued to treat the appellant in a cruel and violent manner. The appellant said that cruelty has caused an apprehension in her mind that it will be harmful and injurious for the appellant to continue to live with the respondent. 

In view of the aforesaid, the submission of learned counsel for the appellant  is that the appellant's case is not that the respondent no. 2 has deserted appellant but appellant left her matrimonial house on the ground that she was physically and mentally tortured by her husband, which forms a case of cruelty but learned Family Court misread the provisions of Section 13(1) (1B) of the Act, 1955 while rejecting the Regular Suit of the appellant.

Before proceeding further, it is relevant to refer the provisions of Section 13 of the Act of 1955, which reads as under:-

"13 Divorce. --

(1) Any marriage solemnised, 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--

1 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

1 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

1 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

2 [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .--In this clause,--

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 3 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 3 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4 [***]

1 [ Explanation. --In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

2 [***]

3[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground--

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 4 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 4 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 5 [bestiality; or]

6[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

1[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation. --This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]"

A bare perusal of the aforesaid provision under Section 13(1) (1B) of the Act of 1955 reveals that any marriage solemnized, whether before or after the commencement of the Act of 1955, 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 has deserted the petitioner (claimant) for a continuous period of not less than 2 years immediately preceding the presentation of the petition. Meaning thereby, a desertion is to be made by the other party against whom divorce is sought.

In the present case, admittedly, the appellant/plaintiff left her matrimonial home finally on 04.07.2017 on the ground of physical and mental torture extended  by the respondent no. 2 and as such she approached the Family Court for dissolution of marriage on the ground of cruelty. It appears that the learned Family Court, Lucknow apparently misread the provisions of Section 13(1) (1B) of the Act, 1955 and rejected the Regular Suit being barred by Section 13(1) (1B) of the Act of 1955 as two years have not passed from the date of desertion.

A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.

On due consideration, we find that rejection of the suit of the appellant is a result of misreading the provisions of Section 13(1) (1B) of the Act, 1955 where desertion has to be made by other person against whom the divorce is sought by appellant/plaintiff. In the instant case, the appellant/plaintiff has left her matrimonial house on 04.07.2017 and approached the Family Court, Lucknow for dissolution of marriage on the ground of cruelty and narrated details in various paragraphs of the plaint about the act of physical and mental cruelty caused by the respondent no. 2, which in our opinion were not carefully read and scrutinized by the Court below before passing the impugned order.

In view of the aforesaid discussions, the impugned order dated 03.08.2017 suffers from infirmity and is hereby set aside. The instant appeal is allowed with the direction to the Court concerned to decide the petition under Section 13 of the Act of 1955 afresh after due hearing to the parties concerned.

Order Date :- 6.9.2017

Ashish/-