Gujarat High Court
Sonalben D/O Dilipbhai Vinodbhai ... vs Rajeshbhai Somabhai Parmar on 3 March, 2021
Bench: R.M.Chhaya, R.P.Dholaria
C/FA/299/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 299 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 299 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SONALBEN D/O DILIPBHAI VINODBHAI PARMAR AND W/O RAJESHBHAI
SOMABHAI PARMAR
Versus
RAJESHBHAI SOMABHAI PARMAR
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
CHETANKUMAR K SHAH(7364) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 03/03/2021
Page 1 of 4
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C/FA/299/2020 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Ms.Dimple Thaker, learned advocate for the appellant
and Mr.Chetankumar K.Shah, learned advocate for the respondent. We
have also perused the original Record and Proceedings.
2. The present appeal under section 28 of the Hindu Marriage
Act, 1955 (hereinafter referred to as "the Act" for short) is directed
against the judgment and decree dated 21.10.2019 passed by learned
Principal Judge, Family Court, Godhra in Family Suit No.58 of 2018
whereby the learned Family Court was pleased to allow the suit under
section 13(1)(A) of the Act and was pleased to dissolve the marriage
between the appellant and respondent herein.
3. Ms.Thaker, learned advocate appearing for the appellant has
mainly contended that the respondent preferred the application for
restitution of conjugal rights being H.M.P.No.84 of 2017 under section 9
of the Act. Ms.Thaker further referring to the record contended that the
said application was allowed by learned Family Court vide order dated
27.4.2018. It was further contended by Ms.Thaker that even after the
decree for restitution of conjugal rights under section 9 of the Act, the
parties have not stayed together as husband and wife and meanwhile, the
respondent herein has preferred the present Family Suit under section
13(1)(A) of the Act for obtaining decree of divorce. It was contended by
Ms.Thaker that learned Family Court has misread the provisions of
section 13(1)(A)(ii) of the Act which inter alia provides that period of one
year should lapse before filing any petition for divorce under section 13
after the judgment and decree under section 9 of the Act for restitution of
conjugal rights is allowed. Ms.Thaker, therefore, submits that the petition
itself was premature and the impugned judgment and decree, therefore,
deserves to be quashed and set aside as the said judgment and decree is
C/FA/299/2020 JUDGMENT
passed in premature not maintainable petition under section 13(1)(A) of
the Act. Ms.Thaker, therefore, submitted that the appeal be allowed.
4. Per contra, Mr.Chetankumar Shah, learned advocate
appearing for the respondent has candidly submitted that the present
Family Suit for dissolution of marriage as provided under section 13(1)
(A) of the Act came to be filed within a period of four months from
passing of the decree under section 9 of the Act for restitution of conjugal
rights. Mr.Shah has candidly submitted that the appeal be allowed and
the impugned judgment and decree be quashed and set aside and the
respondent be permitted to withdraw Family Suit No.58 of 2018 in this
appeal, with a liberty file appropriate proceedings for divorce on any
other ground including the grounds which were taken in Family Suit
No.58 of 2018.
5. No other or further submissions have been made by learned
advocates for the parties.
6. On bare reading of the provisions of section 13(1)(A)(II) of
the Act, it clearly provides that if there is no restitution of conjugal rights
by and between the parties of marriage for a period of one year or upward
after passing of the decree for restitution of conjugal rights to which they
were parties, then and then only either party to the marriage can maintain
petition for dissolution of marriage by decree of divorce. The record
indicates that H.M.P.No.84 of 2017 was filed on 2.11.2017 and the same
was allowed on 27.4.2018, whereas the present application under section
13(1)(A) of the Act seeking divorce was filed on 16.8.2018 i.e. within a
period of four months. The said petition/suit itself was not maintainable.
Learned Family Court has not considered the said aspect. Upon
reappreciation of the evidence on record, it is crystal clear that Family
Suit No.58 of 2018 filed by the respondent under section 13(1)(A) of the
C/FA/299/2020 JUDGMENT
Act was not maintainable on the date on which it was filed. Learned
Family Court ought not to have entertained such family suit. The
impugned judgment and decree of dissolution of marriage deserves to be
quashed and set aside. As far as liberty is concerned, it is open for the
respondent to file appropriate family suit under the provisions of the Act
for decree of divorce on any grounds including the grounds urged in
Family Suit No.58 of 2018 and this judgment or the impugned judgment
and decree shall not come in the way of the present respondent .
7. Appeal is allowed accordingly. The impugned judgment and
decree dated 21.10.2019 passed in Family Suit No.58 of 2018 by learned
Principal Judge, Family Court, Godhra is hereby quashed and set aside.
Record and Proceedings be transmitted back to the learned trial Court
forthwith. However, there shall be no order as to costs.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
H.M. PATHAN
