Benudhar Behera vs Smt. City Satabdi
2022 Latest Caselaw 7598 Ori

                      IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      MATA No.224 of 2022


     Benudhar Behera                          .........          Appellant
                                                 Mr. Kousik Ananda Guru, Advocate


                                           -Versus-


     Smt. City Satabdi                        .........          Respondent


                                       CORAM:

                                       JUSTICE S. TALAPATRA
                                       JUSTICE SAVITRI RATHO

                                            ORDER

21.12.2022 Order No.

01. 1. This matter is taken up through Hybrid Mode.

2. This is an appeal under Section-19 (1) of the Family Courts

Act, 1984 from the judgment dated 12.10.2022 delivered in Civil

Proceeding No.296 of 2021 whereby the prayer of the appellant and

the respondent for dissolution of marriage by a decree of divorce by

mutual consent under Section-13-B of the Hindu Marriage Act, 1955

has been declined.

3. Mr. Kousik Ananda Guru, learned counsel has appeared for

the appellant whereas Mr. B. Jena, learned counsel has appeared for

the respondent. We heard them. Both the counsel have submitted that

was a mistake that occurred at the time of drafting of the petition was

amended. The petition filed by the parties in the Family Court ought

to have been filed under Section-28 of the Special Marriage Act,

1954, as the marriage was solemnized and registered under Sections-

12 & 13 of the Special Marriage Act, 1954.

4. Mr. Guru, learned counsel appearing for the appellant has

submitted that in para-6 of the judgment reasons are provided why the

said matrimonial suit has been dismissed. For the purpose of

reference, the passage is reproduced here under:

"6. It is pertinent to mention here that the Special

Marriage Act provides a special form of marriage, its

registration and divorce. A marriage between any two

persons belonging to any religion or creed may be

solemnized under this Act. Being a secular Act, it plays a

key role in liberating individuals from traditional

requirement of marriage. A unique feature of the Special

Marriage Act is compulsory registration of marriage under

the Act, which protects the interest of the parties and

children born in the wedlock. No religious rituals or

ceremonies are required for the marriage to be completed

under the Special Marriage Act and it is up to the parties to

decide whether they want to perform marriage rituals or

not. This being the settle position of law, this Court is of the

considered view that no ritual is required in order to

validate the marriage solemnized under the provision of

Special Marriage Act. So, in the instant case, even if the

some rituals were performed after the marriage was

registered, the said ritual shall not validate further the

marriage solemnized under the Special Marriage Act. Also

the rites and custom followed subsequently after the

marriage under the Special Marriage Act shall not

invalidate the marriage registered under the Special

Marriage Act. Even if the parties solemnized their marriage

under the Hindu rites and custom after their marriage was

registered, such solemnization of marriage has got no effect

on the marriage solemnized under the Special Marriage Act

and the marriage solemnized under the Special Marriage

Act shall subsist. So, when a valid marriage under the

Special Marriage Act subsists, any ritual followed thereafter

may be for the purpose of religious obligation, but it will not

supersede the marriage solemnized under the Special

Marriage Act, rather any marriage solemnized under the

custom and rites shall be redundant and non-existant in

view of the subsistence of a valid marriage under the

Special Marriage Act. So, when the subsequent marriage is

found to be non-existant in the eye of law, the question of

dissolution of such marriage does not arise. Again coming

back to the instant case, the marriage of the parties

solemnized before the Special Marriage Officer, Panposh

on 18.02.2014 is still subsisting and during subsistence of

such marriage, dissolution of the so called subsequent

marriage under the Hindu rites and custom is misconceived

and not maintainable in the eye of law. Moreover, the Court

is not in a position to dissolve the subsequent marriage

solemnized on 26.02.2016 when a valid marriage under the

Special Marriage Act is still subsisting. So, taking into

consideration the aforesaid discussion, this Court is of the

view that the rituals performed after the marriage under

Special Marriage Act on 18.02.2014 shall not validate the

present application and no application under the Hindu

Marriage Act is maintainable, especially when the marriage

under the Special Marriage Act is subsisting. Consequently,

the present application found not maintainable is liable to

be dismissed."

5. From a bare reading of the said passage, it appears that at the

time of filing of the said petition for divorce by mutual consent, the

appellant and the respondent claimed that their marriage had been

solemnized in terms of the Hindu Marriage Act after the marriage

under the Special Marriage Act was registered.

6. The finding of the Judge, Family Court in this regard in our

considered opinion does not suffer from any infirmity, in as much as

the marriage, which is registered following the provisions of the

Special Marriage Act, 1954 is a marriage in full form and valid and

thereafter no subsequent marriage can take place either under practice

or under any law such as the Hindu Marriage Act.

7. Therefore, the finding that the marriage that was solemnized

and registered under the Special Marriage Act, 1954 is subsisting is

affirmed by us.

8. As we have noticed that after filing of the matrimonial suit

under Section-13-B of the Hindu Marriage Act, 1955, the cooling

period of six months had expired and after that the impugned

judgment was delivered notwithstanding that the parties are

maintaining their consent for decree of divorce. In such

circumstances, the technical objection cannot be allowed to pervade.

9. Hence, we declare the marriage, which was solemnized on

18.02.2014 between the parties is dissolved on mutual consent.

10. We have perused the records, as placed before us in the form

of the certified copies, and find that the parties have not reserved any

conditions for the said consent, except that they would file a petition

in G.R. Case No.1084 of 2016 which is pending in the court of the

S.D.J.M., Panposh for bring an end based on the settlement, as noted

above.

11. We direct the parties to take necessary steps for withdrawal of

the prosecution or to bring an end in terms of the above settlement.

12. As the parties are employed, there is no clause for any

alimony or costs of the litigation.

13. We have also examined the statements recorded by the Judge,

Family Court, Rourkela, in C.P. No.296 of 2021 of both the appellant

and the respondent when they have categorically stated that their

marriage has come to a dead end and hence, they want to get relieved

of the dead marriage. That is why they have freely extended the

consent for divorce.

14. Having appreciated the materials as referred to above as well

as the consent, the marriage is dissolved by mutual consent.

15. In the result, the appeal is allowed.

16. The Registry is directed to prepare the decree accordingly.

(S. Talapatra) Judge

(Savitri Ratho) Judge

Subhasis