This appeal challenges the dismissal of a divorce petition for not disclosing a prior Section 9 suit. The Court held that non-compliance with Rule 5(g) does not mandate dismissal without merits, allowing the appellant to raise the issue later.
Appeal dismissed; appellant directed to agitate the issue of non-compliance at final hearing.
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Court No. - 4 Case :- FIRST APPEAL No. - 782 of 2019 Appellant :- Abhinav Gupta Respondent :- Deepti Counsel for Appellant :- Vikrant Rana
Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.
This appeal has been filed by appellant, Abhinav Gupta under Section 19 of the Family Courts Act against order dated 18.09.2019 passed by Additional Principal Judge, Family Court No. 3, Muzaffar Nagar in Case No. 656 of 2015 (Smt. Deepti vs. Abhinav Gupta), by which he has rejected application 63 Ga dated 16.09.2019 filed by appellant before him with a prayer to dismiss the divorce case on ground of the failure of the respondent to disclose the factum of filing of suit under Section 9 of the Hindu Marriage Act (hereinafter called as "Act") by her before filing the divorce petition as required by Rule 5 (g) of Hindu Marriage and Divorce Rules, 1956 (hereinafter called as 'Rules 1956') framed by Allahabad High Court.
The contention raised by learned counsel for the appellant before us is that the respondent filed a case under Section 13 of the Act on 06.07.2015 against the appellant. The filing of the aforesaid petition was preceded by filing of a suit under Section 9 of the Act by the respondent against the appellant. Further contention appears to be that although Rule 5 (g) of the Rules, 1956 mandates that in addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20 (1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the particulars prescribed therein and Rule 5 (g) of the Rules of 1956 which is relevant for this case categorically provides that a petition for divorce shall disclose whether there was any previous proceeding with reference to marriage by or on behalf of either of the parties and result of such proceedings.
The respondent having failed to mention in the divorce petition the fact that he has also filed a suit under Section 9 of the Act before filing the divorce petition, the same was liable to be dismissed on that count alone and learned Additional
Principal Judge, Family Court fell into an error in taking a view to the contrary.
We have heard learned counsel for the appellant and perused the record.
Briefly stated facts of the case are that marriage between appellant and the respondent was solemnized on 31.01.2013. A petition under Section 13 of the Act was filed by respondent against appellant on 06.07.2015 which was registered as Case No. 656 of 2015. Before filing the Case No. 656 of 2015, the respondent had filed suit under Section 9 of the Act on 13.01.2014 which was numbered as 44 of 2014. The aforesaid fact was not disclosed by her in the divorce petition although she had withdrawn the same on 12.12.2015.
The question which arises for our consideration is that whether the divorce petition filed by respondent was liable to be dismissed without entering into the merits on the ground of her failure to comply with the mandatory requirement of Rule 5 (g) of the Rules 1956 by concealing in the divorce petition the fact of her having filed earlier suit under Section 9 of the Act.
In order to appreciate the submissions made by learned counsel for the appellant, it would be useful to extract Rule 5 of the Rules, 1956:
"5. Contents of petitions. - In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars:
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband before and after the marriage;
(c) the principal permanent address where the parties cohabited and the address where they last resided together;
(d) where there is any living issue of the marriage and, if so, the names, dates of birth and ages of such issues;
(e) in every petition presented by a husband for divorce on the ground that his wife is living in adultery "with any person or persons or for judicial separation on the ground that his wife has committed adultery with any person or persons", the name occupation and place of residence of such person or persons so far as they can be ascertained;
(f) in every petition presented by a wife for divorce on the ground that her
husband is living in adultery with any woman or woman or women or for judicial separation (now in the petition for either remedy on the ground of extramaterial sex) on the ground that her husband has committed adultery with any woman or women, the name, occupation and place of residence of such woman or women so far as they can be ascertained;
(g) whether there have been in any Court in India any, and is so, what previous proceedings with reference to the marriage by or on behalf of either of the parties and the result of such proceedings;
(h) the matrimonial offence or offences charged, set out in separate paragraphs, with the time and place of its or their alleged commission;
(i) property mentioned in Section 27 of the Act, if any; and
(j) the relief or reliefs prayed for."
We have very carefully perused Rule 5 (g) and other Rules of the Rules 1956 but we do not find any Rule providing that where a divorce petition does not conform to the requirements prescribed under Rule 5 (g) of Rules 1956, any petition filed under Section 13 of the Hindu Marriage Act shall be dismissed by the Court concerned without going into the merits.
In view of the above, we do not find any force in the submissions made by learned counsel for the appellant. This appeal is accordingly dismissed.
However, this order will not preclude the appellant from agitating before the Judge, Family Court at the time of final hearing the effect of non-compliance by respondent with the requirement of Rule 5 (g) of the Rules, 1956 on the merits of the case.
Order Date :- 25.11.2019 V.S.Singh
2 issues framed by the court
Whether a divorce petition failing to disclose a prior suit under Section 9 of the Hindu Marriage Act is liable to be dismissed without going into merits.
Whether non-compliance with mandatory requirements of Rule 5(g) of the Hindu Marriage and Divorce Rules, 1956 precludes court from adjudicating on merits.
Abhinav Gupta
Deepti
Bala Krishna Narayana
Rohit Ranjan Agarwal
As recorded by the court registry
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