Chattisgarh High Court
Smt. Namita Patel vs Niranjan Lal Patel on 11 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 147 of 2022
Smt. Namita Patel W/o Niranjan Lal Patel Aged About 51 Years R/o Kotra
Road, In Front Of Hp Gas Atal Niwas, Quarter No. - Mig - B- 401, Raigarh,
Tah. And Dist.- Raigarh (C.G.)
---- Appellant
Versus
Niranjan Lal Patel, S/o Late Shri Dayaram Patel, Aged About 48 Years,
Presently Aged About 48 Years, Caste - Aghariya, Occupation - Service, R/o
Quarter No. E-09, C.S.E.B. Colony, Hirapur, Kotra Road, Raigarh, Tah. And
Dist.- Raigarh (C.G.)
---- Respondent
For Appellant Mr. Ravindra Sharma, Advocate.
For Respondent Mr. Harsh Tripathi, Advocate.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
11/10/2022
1. Heard.
2. This miscellaneous appeal under Section 19 (1) of the Family Courts
Act, 1984 is preferred by appellant-wife against the order dated
30.07.2022 (Annexure A-1) passed in Civil Suit No.F77-A/2018 by
which learned Judge, Family Court Raigarh, District Raigarh (CG)
rejected the application filed by appellant-wife for deciding Issue No.3
as preliminary issue, which relates to maintainability of divorce petition
before the Family Court.
3. Learned counsel for appellant-wife would submit that divorce petition
was filed by respondent-husband under Section 13 (1) (ia) (ib) of the
Hindu Marriage Act, 1955 pleading that marriage between the parties
was solemnized on 28.6.1999 as per Hindu rites. However,
subsequently both the parties converted to Christianity and again got
married as per Christian rites, which is evident from the Marriage
Certificate dated 31.3.2002 issued by Biswagarh Church, Riagarh
(CG) filed along with Covering Memo dated 25.8.2022. It is stated as
now both the parties are apparently professing Christian religion,
therefore, for the purpose of divorce, the petition under the Hindu
Marriage Act, 1955 would not be maintainable. In such a situation, the
Court below should have decided Issue No.3 - whether suit filed by
plaintiff under the Hindu Marriage Act, 1955 is maintainable, as a
preliminary issue.
Placing reliance on the judgment of Supreme Court in the case
of Santosh Kumar v. Ashok Chand & ors, reported in AIR 2021 SC
2710, learned counsel submits that when no prejudice is likely to be
caused to either of the parties, then the issue of like nature is required
to be decided as a preliminary issue. Hence, the impugned order
passed by the learned Court below is liable to be set aside and the
Court below be directed to decide Issue No.3 as a preliminary issue.
4. Per contra, learned counsel for the respondent-husband would submit
that the order passed by the learned Family Court is well merited and
it does not call for any interference.
5. We have heard learned counsel for the parties at length, perused the
pleadings and the evidence.
6. Learned counsel for the appellant drawn our attention to Para-3 of the
reply to the application filed under Order 14 Rule 2 of Civil Procedure
Code, 1908 to make a submission that admission exists on the part of
respondent that they belong to Christian religion. However, entire
reading of Para No.3 of reply would show that respondent-husband
had specifically denied the averments made in Para-3 of application
stating that on 31.3.2022 he had not converted from Hinduism to
Christianity. The husband further stated that he neither embraced
Christian religion nor was following Christianity. In the application filed
for grant of divorce, it has been stated by respondent husband that
both the parties got married on 28.6.1999 at Arya Samaj Temple,
Bilaspur as per Hindu custom, and this fact was also admitted by
appellant-wife in her reply to divorce petition, although she has further
specifically pleaded that by birth she is Christian and following
Christianity. However, at this stage, this version of appellant wife
cannot be accepted as a gospel's truth that after performing marriage
on 28.6.199, respondent converted into Christian, therefore, divorce
petition under the Hindu Marriage Act, 1955 would not lie. The
question whether respondent converted into Christianity from
Hinduism after marriage on 28.6.1999, is a matter of evidence along
with its sustainability of disowning the Hindu religion.
7. Pleadings of both the parties would show that their marriage was
solemnized as per Hindu rituals and ceremonies. As per Hindu law,
marriage is a sacrament, which is enjoyed in the Hindu religion for
regeneration of men and obligatory in case of every Hindu who does
not desire to adopt the life of a Sanyasi. Consequently, the averment
of second marriage by conversion along with its legality of disowning
the Hindu religion would be a question of evidence based on custom
which cannot be decided as a preliminary issue. Judgment of Hon'ble
Supreme Court in case of Santosh Kumar (supra), relied upon by
learned counsel for appellant, is of no help to the appellant for the
reason that in said case there was admission, and on that premises
issue was proceeded to be decided whereas in the instant case there
is specific denial by respondent that he never converted into
Christianity.
8. For the foregoing discussions, we are of the considered view that the
issue with respect to maintainability of divorce petition under the
Hindu Marriage Act, 1955, cannot be adjudicated as a preliminary
issue. The impugned order passed by the Court below does not call
for any interference.
9. In the result, the appeal fails and is dismissed. No order as to costs.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Nisha
