Gujarat High Court
Tejalbahen Siddharthbhai Patel D/O ... vs Rajput Siddharthsinh Balchandra @ ... on 25 November, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/3045/2024 ORDER DATED: 25/11/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3045 of 2024
==========================================================
TEJALBAHEN SIDDHARTHBHAI PATEL D/O HARSHADBHAI ASHABHAI
PATEL AND W/O RAJPUT SIDDHARTHSINH-
Versus
RAJPUT SIDDHARTHSINH BALCHANDRA @ PATEL SIDDHARTHBHAI
BALCHANDRA
==========================================================
Appearance:
HL PATEL ADVOCATES(2034) for the Appellant(s) No. 1
MS HETA S PANCHAL(10896) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/11/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. We had heard this matter on 20.11.2024 and passed the
following order:-
"1 An application was filed by both, the applicant and
respondent herein seeking divorce under Sec.13(B) of the Hindu
Marriage Act.
2 Reading of the section indicates that subject to the
ingredients of the section being satisfied i.e. on an application
filed by both the parties seeking divorce by mutual consent and
that they have been living separately for a period of one year
or more, it is not the business of the Family Court to go
behind the application and refuse such an application on the
grounds not germane to the provisions of Sec.13(B) of the
Hindu Marriage Act.
3 Prima facie, the observations of the learned Principal Judge,
Family Court at Anand are dehors the provisions of Sec.13(B)
of the Hindu Marriage Act and we are sorry to state that the
observations of the Principal Judge, Family Court, exhibits total
ignorance of the provisions of law and the judge has travelled
NEUTRAL CITATION
C/FA/3045/2024 ORDER DATED: 25/11/2024
undefined
beyond the spirit of the section in refusing to grant divorce by
mutual consent.
4 We have heard Mr.Maharshi Patel, learned counsel appearing
for the appellant - wife and Ms.Heta Panchal, learned counsel
appearing for the respondent - husband.
5 Both the learned counsels appearing for the respective parties
reiterate that whatever has been stated in the application filed
before the Family Court seeking divorce by mutual consent
stands as of now and they mutually want to separate.
6 Since the appellant is staying at Dubai, she is permitted to
appear virtually before this Court so that her wishes can be
ascertained so also that of the respondent who is also permitted
to appear through virtual mode on 25.11.2024.
Stand over to 25.11.2024."
2. Pursuant to the order passed, the appellant who is
serving in Dubai appeared before us though online mode. She
has also addressed an email to learned counsel for the
appellant, which Mr. Patel learned counsel places on record.
He has identified the appellant. Both the parties have also
identified each other and admitted that they are husband and
wife and that they had approached the Family Court at Anand
by filing Family Suit No.176 of 2023 for divorce by mutual
consent under Section 13B of the Hindu Marriage Act. The
memo of the petition signed jointly by both the parties is on
record. The memo of the suit before the Family Court reads as
under :
"10. Reason for Application
Both of us petitioners were married on 12/07/1999 and
we both petitioners have been having frequent conflicts
and disagreements, since today we both have been living
separated from each other last dated 26/11/2019. So both
of us petitiones have filed the present petition in your
NEUTRAL CITATION
C/FA/3045/2024 ORDER DATED: 25/11/2024
undefined
HON'BLE COURT for divorce by mutual consent
considering our future.
11. Appropriate legal stamp fee Rs. 50/- affixed on
Applicaton.
12. We believe that the names and addresses of both the
petitioners are true and correct as mentioned in the
application header.
13. Among us both the petitioners, petitioner no. 1. As I
have been living abroad since 26/11/2019. we are not
able to come to India to file the Application in your
court, and to appear on y behalf in all proceedings
related to it. So my father Harshadbhai Ashabhai Patel
has been legally appointed as a Special Power Of Attorney
who is the work done on behalf of i petitioner no. 1.
father Harshadbhai Ashabhai Patel is present in the
Hon'ble Court to file this application, to make the
corresponding affidavit, to give the corresponding
documents and to give evidence and to do all kinds of
legaly work."
3. Perusal of memo of the application indicates that both
the parties married on 12.07.1999 and their marriage was
registered on 21.10.2013 and that they have found that they
are not in a position to live together. It is the case of the
appellant who was joint signatory to the application that as
she is living in Dubai since 26.11.2019 and earning livelihood
and is able to maintain son Harsh, she has voluntarily
relinquished her right for permanent alimony.
NEUTRAL CITATION
C/FA/3045/2024 ORDER DATED: 25/11/2024
undefined
4. Para 7 of the application indicates that both the
petitioners have been living separately since 5 years and
therefore, requested the Family Court to pass decree of divorce
by mutual consent. Unfortunately, the Family Court, Anand
completely misread Section 13B of the Hindu Marriage Act
which indicates that when the petition for dissolution of
marriage by a decree of divorce is presented by both the
parties on the ground of more than 1 year separation and that
they have not been able to live together and that their
marriage should be dissolved, it was not the business of
Family Court to be suspicious about such an application in
absence of any unforeseen circumstances pointed out by either
of the parties. Reading of reasoning of Family Court indicates
that merely because appellant is staying at Dubai and son is
with her, there is no mutual consent. Apparently, reasons for
rejecting the application are completely erroneous and contrary
to law.
5. Normally, we would have sent the matter back to the
Family Court because it is not the business of this Court to
ascertain the wishes of the parties by mutual consent.
However, despite the fact that application for divorce was
without any reservation of both the parties and is otherwise in
accordance with law, learned Judge has not accepted the
same. Therefore, it is in this peculiar circumstances, when both
NEUTRAL CITATION
C/FA/3045/2024 ORDER DATED: 25/11/2024
undefined
the parties are present before the Court and are identified by
their respective counsel and their email also are on record that
we pass following order:
6. Judgment and decree dated 05.08.2024 passed by the
Family Court, Anand in Family Suit No.176 of 2023 is hereby
quashed and set aside. The application under Section 13B of
the Hindu Marriage Act is allowed. Decree of divorce is
accordingly granted. Marriage is hereby dissolved. It is clarified
that appellant wife has given up permanent alimony for herself
and their son. Similarly, respondent - husband has also given
up the right and custody of the son.
7. It would be appropriate to bring to the notice of learned
Principal Judge, Family Court the present order passed by this
Court. Registrar General is requested to send copy of this
order to the Family Court, Anand.
(BIREN VAISHNAV, J)
(MAULIK J.SHELAT,J)
DRASHTI
