First appeal against the return of a divorce petition filed before the expiry of the mandatory one-year period under Section 14 of the Hindu Marriage Act. The High Court found no exceptional hardship and dismissed the appeal.
Appeal dismissed; impugned order refusing to entertain the divorce petition is upheld.
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Court No. - 4
Case :- FIRST APPEAL No. - 860 of 2019
Appellant :- Siddhartha Gupta Respondent :- Nainsi Gupta Counsel for Appellant :- Akhil Kumar Shukla
Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.
Heard learned counsel for the appellant and perused the impugned order.
This first appeal is directed against the order dated 27.11.2019 passed by Learned Additional Principal Judge, Family Court, Farrukhabad in Case No. 41/74 of 2019 (Siddhratha Gupta Vs. Nainsi Gupta), u/S 14 of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act") by which he has returned the plaint on the ground that the same was filed before expiry of one year of the the marriage between the parties.
Section 13B and Section 14 of the Act which are relevant for our purpose are being reproduced herein below :
13B Divorce by mutual consent. —(1)Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
14 No petition for divorce to be presented within one year of marriage.— (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without
prejudice to any petition which may be brought after the expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.
Thus, upon a most superficial reading of Section 13B and Section 14 of the Act, it transpires that a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Section 14 of the Act clearly provides that it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage.
It is true that proviso to Section 14(1) makes a provision that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.
In the present case, learned counsel for the appellant has failed to demonstrate that any exceptional hardship could be caused, in case the petition is not entertained before the period prescribed for presentation of the divorce petition under Section 14 of the Act.
The impugned order is based upon relevant considerations and supported by cogent reasons. Hence, we therefore, refuse to interfere with the same.
This appeal lacks merit and is accordingly dismissed.
Order Date :- 12.12.2019 SA
3 issues framed by the court
Whether the High Court should interfere with the Family Court's order returning the divorce petition filed before the expiry of the mandatory one-year copula period under Section 14 of the Hindu Marri
Whether the appellant could establish exceptional hardship to justify entertaining the divorce petition before the expiration of one year from the date of marriage.
Whether the impugned order rejecting the petition on merits is legal and sustainable.
2 provisions across 1 enactments
Siddhartha Gupta
Nainsi Gupta
Bala Krishna Narayana
Shamim Ahmed
As recorded by the court registry
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