Allowed

Sonam Devi and Another v. Na

Allahabad HC14 Feb 2023/105/2022

Case brief

AI extract

What is this about?

The Apex Court allowed the appellant's appeal against the Family Court's dismissal of a divorce by mutual consent suit. The High Court held that the lower court erred in doubting the marriage and separation facts due to lack of documentary proof and misapplied the cohabitation test, setting aside the judgment and decreeing the divorce.

What did the court decide?

The prosecution order dated 03.10.2022 dismissing the suit is set aside and a decree of divorce is issued dissolving the marriage between the appellants.

Sonam Devi and Another Vs Na — Matrimonial and Divorce | Allahabad HC (2023)

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Court No. - 1

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Case :- FIRST APPEAL No. - 105 of 2022

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Appellant :- Sonam Devi And Another Respondent :- Na

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Counsel for Appellant :- Piyush Shrivastava,Ajay Bahadur Yadav

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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C.M. Application No.2 of 2022 (impleadment application)

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Heard Shri Piyush Shrivastava, learned counsel for the appellants and Shri Ajay Bahadur Yadav, learned counsel for the appellants who has moved the instant impleadment application.

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The applicant seeking his impleadment is father of the wife. Father of the wife is neither a necessary nor a proper party to a suit for divorce, moreso to a suit for divorce by mutual consent, and he is neither a necessary party nor a proper party to this appeal.

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In view of the above, the instant impleadment application is, hereby, rejected.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 14.2.2023 Arnima

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Court No. - 1

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Case :- FIRST APPEAL No. - 105 of 2022

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Appellant :- Sonam Devi And Another Respondent :- Na

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Counsel for Appellant :- Piyush Shrivastava,Ajay Bahadur Yadav

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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(1) Heard Shri Piyush Shrivastava, learned counsel for the appellants.

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(2) By means of the instant appeal, the appellants, who are are the wife and husband, have challenged the validity of the judgment and order dated 03.10.2022 passed by the Additional Principal Judge, Family Court-I, Raibareilly in Matrimonial Case No.121 of 2021, dismissing the Suit filed by the appellants for dissolution of their marriage by mutual consent under Section 13 B of the Hindu Marriage Act, 1955.

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(3) The aforesaid Suit was filed by the appellants pleading that marriage between the appellants was solemnized on 05.09.2020 in accordance with the Hindu rights and rituals in presence of reputed persons and near relatives of the appellants; that the marriage was performed without the consent of the appellants, in pressure of their guardians; that the appellants were living separately since 09.09.2020 and that all the efforts made by the appellants and their well wishers for saving their matrimonial relationship failed and both the appellants agreed to get their marriage dissolved by a decree of divorce by mutual consent. It was categorically pleaded in the plaint that the parties were residing separate from each other since 09.09.2020, whereas the Suit was filed on 15.12.2021.

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(4) Both the appellants had filed their respective affidavits in support of the averments made in the plaint. On 17.08.2022, i.e., more than six months after filing of the Suit, the Family court recorded statements of the appellants and both of them supported the plaint averments.

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(5) Even after both the appellants having categorically stated that they had married to each other on 05.09.2020, that they were residing separately from each other since 09.09.2020 and that they were willing to get their marriage dissolved through mutual consent, the Family Court passed an order dated 19.09.2022 summoning the parents of the appellant no.1- Smt. Sonam Devi.

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(6) The Family Court examined Shri Jagdish Prasad Yadav, father of the appellant no.1, as Court Witness on 24.09.2022 and he stated that he had got her daughter- Sonam Devi (appellant no.1) married to Narendra Kumar (appellant no.2).

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(7) However, the Family Court dismissed the Suit by means of judgment and order dated 03.10.2022 holding that the factum of the marriage between the parties is doubtful as the plaint is vague, misleading and suspicious in this regard and there is no documentary proof of this marriage.

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(8) The Family Court held that the fact that the parties are living separate from each other for one year or more is also doubtful as the appellant no.1 appeared before the Family Court along with her mother-in-law and stated that her parents had got her married forcibly.

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(9) The provision for divorce by mutual consent is contained in Section 13(B) of the Hindu Marriage Act, 1955, which provides as follows:-

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“ 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 solemnized 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.

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(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 solemnized 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. ”

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(10) The conditions for grant of divorce by mutual consent are (i) that they have been living separately for a period of one year or more, (ii) that they have not been able to live together, and (iii) that they have mutually agreed that the marriage should be dissolved.

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(11) In the plaint filed by the appellant jointly, under Section 13(B) of the Hindu Marriage Act, 1955, both of them have categorically pleaded that they got married to each other on 05.09.2020 in presence of reputed persons and near relatives; that they were living separately from each other since 09.09.2020; that all the efforts made by the appellants and their well wishers for saving their matrimonial relationship failed; that they were living separately from each other for the past one year, without mutual cohabitation and that both of them wanted to get their marriage dissolved by mutual consent. Both the appellants had filed their affidavits in support of the plaint averments and in their statements recorded before the Family Court on 17.08.2022, i.e., after more than six months since the filing of the plaint, both the appellants had reiterated the

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aforesaid averments.

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(12) Even in the statements of father of the appellant no.1, who was examined as Court Witness on 24.09.2022, he had stated that while the appellant no.1 was studying in Intermediate he had got her married to appellant no.2. Therefore, the findings of the Family Court that the fact of solemnization of marriage between the appellants is doubtful as no documentary evidence of the marriage was filed, is unsustainable.

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(13) Divorce Suit being proceedings of civil nature, is to be decided outside on the basis of preponderance of probability and the test of proof beyond reasonable doubt, which is applicable to criminal cases, does not apply to Suits for Divorce. From the pleadings, the affidavits of the appellants filed in support of the pleadings and their statements recorded on 17.08.2022, six months after filing of the Suit, it was clear that the parties had got married on 05.09.2020. There is no requirement of the factum of marriage being proved by any documentary evidence. The factum of marriage between the appellants was also proved by the statement of Shri Jagdish Prasad Yadav, father of the appellant no.1 who was examined as Court Witness. In these circumstances, findings of the Family Court that the factum of marriage is doubtful, has been recorded ignoring the aforesaid material and admissible evidence available on record and, therefore, it is perverse.

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(14) The Family Court further held that it was not proved that the parties living separate from each other for past one year or more and it was evident from the evidence that both the parties were residing under one roof.

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(15) The separate living for one year or more, which is a precondition for maintaining a Suit under Section 13 B of the

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Hindu Marriage Act, 1955, is living separately in the sense that there is no cohabitation between the parties as husband and wife. There is no requirement of the parties living in different homes for maintaining a Suit under Section 13 B of the Hindu Marriage Act, 1955 and in case the parties have not cohabited as husband and wife for a period of atlease one year, they can maintain a Suit for Divorce by mutual consent. Therefore, finding of the Family Court that the parties could not establish that they were living separately from each other for past one year or more, is also against the evidence available on record and the same is also perverse.

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(16) In view of the aforesaid discussions, this Court is of the considered view that from the pleadings, evidence of the parties and evidence of the Court Witness referred to above, it is clearly established that the appellants got married to each other on 05.09.2020, that they have not lived together as husband and wife since 09.09.2020 and that a period of more than one year has elapsed since they started living separately and still both the appellants are willing to get their marriage dissolved by mutual consent.

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(17) In these circumstances, the Suit filed by the appellants for granting a decree of divorce by mutual consent deserves to be decreed.

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(18) Accordingly, the instant First Appeal is allowed.

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(19) The judgment and decree dated 03.10.2022 passed by the Additional Principal Judge, Family Court-I, Raibareilly dismissing the Matrimonial Case No.1208 of 2021, is hereby set aside. The aforesaid Suit is decreed and a decree of divorce is issued dissolving the marriage between the appellantsSonam Devi and Narendra Kumar that was solemnized on

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05.09.2020.

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(20) There will be no order as to costs.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 14.2.2023 Arnima

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Digitally signed by :- ARNIMA SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sonam Devi and Another v. Na

Case brief

What is this about?

What did the court decide?

Sonam Devi and Another v. Na

Case brief

What is this about?

What did the court decide?

What the court decided

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