Chintan Parimal Vyas vs Na
2023 Latest Caselaw 1333 Guj

Citation : 2023 Latest Caselaw 1333 Guj
Judgement Date : 8 February, 2023

Gujarat High Court

Chintan Parimal Vyas vs Na on 8 February, 2023

Bench: A.J.Desai

      C/FA/378/2023                                      ORDER DATED: 08/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 378 of 2023

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                           CHINTAN PARIMAL VYAS
                                  Versus
                                    NA
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Appearance:
MR KAUSHAL D PANDYA(2905) for the Appellant(s) No. 1,2
MR. NILAY A THAKER(7275) for the Appellant(s) No. 1,2
NONE for the Defendant(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                Date : 08/02/2023
                                 ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present appeal filed under Section-19 of the Family

Courts Act, 1984 read with Section 28 of the Hindu Marriage

Act, 1955, the appellants - original petitioners have challenged

the judgment and order dated 01.10.2022 passed by learned

Principal Judge, Family Court, Vadodara in Family Suit No. 169

of 2022, by which, learned Family Court Judge dismissed the

petition filed by present appellants for decree of dissolution of

marriage under Section 13(B) of the Hindu Marriage Act, 1955.

2. The appeal was listed for hearing today. Appellants have

remained present before this Court. Appellant No.1 is

C/FA/378/2023 ORDER DATED: 08/02/2023

represented by Mr. Kaushal Pandya, learned advocate

whereas the appellant No.2 is represented by Mr.Nilay Thaker,

learned advocate. Both the learned advocates have identified

their clients. Both the learned advocates have produced

affidavit dated 25.11.2022 filed by appellant No.1 and affidavit

dated 06.12.2022 filed by appellant No.2 as well as xerox

copies of Aadhar Card as well as Pan Card of Appellant No.1

and xerox copy of Aadhar Card of Appellant No.2 duly signed

by the parties, which are taken on record.

3. With consent of the respective parties, this appeal is taken up

for final hearing in the chamber.

4. Short facts arise from the record are as under:

4.1. That the marriage between present appellants was solemnized

on 27.02.2020 at Vadodara as per Hindu rites and customs of

their community. The marriage of the appellants was duly

registered before Vadodara Mahanagar Seva Sadan at Serial

No.04754 on 30.07.2020. After their marriage, both the

appellants started residing together initially at Vadodara and

thereafter, they shifted to Pune. After some time, they found

that they are unable to carry further their matrimonial life and

C/FA/378/2023 ORDER DATED: 08/02/2023

therefore, they separated and started living separately since

January, 2021. On completion of one year of separation, a

petition under Section 13(B) of the Hindu Marriage Act came to

be filed by the appellants on 17.02.2022 before learned Family

Court, Vadodara and requested to pass a decree of dissolution

of marriage, which was solemnized on 27.02.2020. Both the

appellants appeared before learned Family Court Judge and

have deposed that both of them are residing separately since

January, 2021 and therefore, a decree for dissolution of

marriage may be passed.

4.2. Learned Family Court Judge dismissed the petition only on the

ground that the address of both the appellants shown in the

cause title of the petition is same i.e. Pune, and therefore,

learned Family Court Judge did not accept the say of the

appellants that they are residing separately and as per the

provision of Section 13(B) of the Hindu Marriage Act, the

appellants are not entitled to get the decree of divorce.

4.3. Hence, this appeal.

5. Appellant No.1 was asked certain questions about the marriage

and fact about the period of their separation. It was also

C/FA/378/2023 ORDER DATED: 08/02/2023

inquired that whether there is possibility of settlement or not. In

response to the same, appellant No.1 namely Chintan Parimal

Vyas has categorically stated that both of them are residing

separately since January, 2021 and thereafter, they have never

stayed together or cohabited or consummated their marriage,

which was solemnized on 27.02.2020 since January, 2021.

Appellant No.1 has stated before this Court on affidavit dated

25.11.2022 sworn at Vadodara, which reads as under:

"I, Chintan Parimal Vyas, Age 32 years, the appellant No. 1, residing at the address mentioned in the cause title of the First Appeal do hereby solemnly affirm and state as under:

1). That I and appellant No. 2 have filed above-mentioned first appeal to challenge the judgment and decree dated 01.10.2022 passed by the Ld. Family Court, Vadodara in Family Suit No. 169/2022, and to dissolve the marriage by mutual consent u/s. 13(B) of the Hindu Marriage Act, 1955.

2). That I have gone through the averments made in the memo of first appeal and do agree with the facts mentioned in the first appeal.

3). That I and appellant no. 2 are separately living since January, 2021. We are unable to live together therefore, we have mutually agreed that marriage should be dissolved.

4). That we have tkaen decision for divorce by mutual consent with conscious mind and without any external force and independently."

6. Similarly, appellant No. 2 namely Chaitali W/o Chintan Parimal

Vyas and D/o Ketanbhai Gajendrabhai Joshi was asked similar

question. She has also categorically stated that they have

C/FA/378/2023 ORDER DATED: 08/02/2023

never stayed together or cohabited or consummated the

marriage since January, 2021. Appellant No. 2 has stated

before this Court on affidavit dated 06.12.2022 sworn at

Vadodara, which reads as under:

I, Chaitali W/o Chintan Parimal Vyas, D/o Ketanbhai Gajendrabhai Joshi, Age 30 years, Occupation : Service, Female, the appellant No. 2, residing at : D-202, Pandit Dindayal Upadhyay Housing Board, Bharuch, residing at the address mentioned in the cause title of the First Appeal do hereby solemnly affirm and state as under:

1). That I and appellant No. 1 have filed above-mentioned first appeal to challenge the judgment and decree dated 01.10.2022 passed by the Ld. Family Court, Vadodara in Family Suit No. 169/2022, and to dissolve the marriage by mutual consent u/s. 13(B) of the Hindu Marriage Act, 1955.

2). That I have gone through the averments made in the memo of first appeal and do agree with the facts mentioned in the first appeal.

3). That I and appellant no. 1 are separately living since January, 2021. We are unable to live together therefore, we have mutually agreed that marriage should be dissolved.

4). That we have tkaen decision for divorce by mutual consent with conscious mind and without any external force and independently.

7. Apart from this, we found that there is no possibility of reunion

of the appellants and therefore, we accept this appeal. The

judgment and order dated 01.10.2022 passed by learned

Principal Judge, Family Court, Vadodara is hereby quashed

and set aside. The Family Suit No. 169 of 2022 filed by the

appellants before the Court of Principal Judge, Family Court,

C/FA/378/2023 ORDER DATED: 08/02/2023

Vadodara is hereby allowed. The marriage of the appellants

solemnized on 27.02.2020 at Vadodara is hereby dissolved.

Registry is directed to draw the decree of dissolution of

marriage accordingly.