Allowed

Mahesh Chandra @ Bhudev Sharma v. Smt. Disha Sharma

Allahabad HC6 Dec 2024FAPLD/776/2024

Case brief

AI extract

What is this about?

The appeal filed under Section 19 of the Family Courts Act, 1984, against an order dismissing a divorce by mutual consent petition was allowed. The High Court quashed the lower court's order, holding the finding of cohabitation was perverse and based on no evidence.

What did the court decide?

The impugned order dated 01.10.2024 is set aside and the matter is remitted to the district court to pass a fresh order.

Mahesh Chandra @ Bhudev Sharma vs Smt. Disha Sharma — Matrimonial and Divorce | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:191450-DB

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Court No. - 39

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Case :- FIRST APPEAL DEFECTIVE No. - 776 of 2024

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Appellant :- Mahesh Chandra @ Bhudev Sharma Respondent :- Smt. Disha Sharma Counsel for Appellant :- Shashi Kant Pandey

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Hon'ble Saumitra Dayal Singh,J. Hon'ble Donadi Ramesh,J.

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Re: Civil Misc. Delay Condonation Application No. 01 of 2024

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Heard Sri Shashi Kant Pandey, learned counsel for the appellant and Sri Ashutosh Kumar Tiwari, learned counsel for the respondent.

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The appeal has been filed with a short delay of 2 days. Cause shown is sufficient. Delay in filing the present appeal is condoned. Delay condonation application is allowed .

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Order on Appeal

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Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the judgement and order dated 01.10.2024 passed by the Principal Judge, Family Court, Sambhal at Chandausi in Case No. 395 of 2023 (Smt. Disha Sharma Vs. Mahesh Chandra), whereby Sri V. K. Lal, the learned Principal Judge, Family Court, Sambhal at Chandausi has dismissed the above case instituted by the parties under Section 13-B of the Hindu Marriage Act, 1955 (herienafter referred to as the 'Act').

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Section 13-B(1) of the Act which forms the subject matter of consideration reads as below :

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" 13-B. 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, on the ground that they have been living

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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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The parties were married 01.06.2017. They disclosed to the Court that they have been living separately since 04.01.2021. There are no issues born to the parties.

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In such circumstances, after more than two years of continuous separate living suffered by them, they approached the learned court below on 12.05.2023 by means of the above proceeding. In fact, the parties disclosed to the learned court below that they have reached a settlement on 12.05.2023 to dissolve their marriage. We have gone through the pleadings made by the parties. They clearly indicated to the Court that the parties have been living separately, continuously from 04.01.2021 onwards. A further fact was disclosed to the court with respect to settlement reached on 12.05.2023 - perhaps referring to the fact that the parties had agreed to dissolve their marriage against payment of Rs. 4,00,000/to the respondent by the appellant.

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The proceeding appears to have travelled to the second motion stage. Statements of the parties were also recorded by the learned court below. Copies of the same have been annexed to the present appeal. They nowhere stated that they had lived together for a single day after 04.01.2021. No doubt may ever arise on such statements, that the parties cohabited beyond 04.01.2021.

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In such facts, the learned court below has passed the impugned order wherein it has framed three issues. Issue no.3 reads as below :

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"3- कययपककयररककबबचवववयहबनयएरखकजयनकककककईसमभयवनयबचबहहअथवयनहह ?"

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The issue has been decided against the parties on the following

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reasoning offered by the learned court below :

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" पककयररककओरसकययवचकयममकहयगययहहवकययचबगणनकवदनयनक 12.05.2023 कक आपसबसहमवतसकसमझझतयकरललयय , जबययचबसन० -1 व 2 पवत - पतनबककरपममसयथ - सयथरहनकककललएतहययरनहहहहयकतथययहययवचकयवदनयनक 02.08.2023 ककउककलथत वयदकयरण 12.05.2023 सकमयत 2 मयह 20 वदनबयदपसत करदबहह , जबवकववधयनकक अनतसयरपककयररकयएकवररसकअलधकसमयतकअलगरहनयआवशयकहह।ऐसयपतबत हकतयहहवकपककयररनकतथयरककछतपयतकहहएदतरवभपपणरआशयसकबनयवटबतथयरककआधयरपर यहययवचकयपसत ककहह।उकपररससथवतयरममयहनहहमयनयजयसकतयवकपककयररनक समययवलधवयतबतहकनकककउपरयनतययवचकयपसत ककहह।उनककमधयममइसपकयरकक उपधयरणयनहहककजयसकतबवकवकसयथनहहरहसकतक।

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समपपणरवववकचनयसकमकरयसतववचयररतमतहहवकपसत ययवचकयवहनदपवववयहअलधवनयमकक धयरय 13 बबककपयवधयनरककववपरबतदयलखलककगयबहह।उकपररससथवतयरममपककयररकक मधयसमपनवववयहवदनयनवकत 01.06.2017 ककववचछकवदतवकययजयनयववलधकलसदयतरकक पवतकपलहकगयतथयययवचकयअनतगरतधयरय 13 बबवहनदपवववयहअलधवनयमवनरसतवकयकजयनक यकगयहह। "

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Clearly, the order passed by the learned court below is based on imagined reasoning arising from non-existing facts.

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Though, no Family Court may grant the decree to dissolve the marriage on collusive or fraudulent conduct of the parties, at the same time, hard evidence and credible material must exist before it may reach such an extreme conclusion.

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In the present facts, the parties bona fide disclosed that they were married on 01.06.2017 and have been continuously living separately from 04.01.2021. No material whatsoever exists or has been considered by the learned court below as may have indicated to it that the parties cohabited after 04.01.2021. Merely because an estranged couple may have been able to find terms for peaceful settlement wherein money also became payable to one of the parties by way of permanent alimony paid by the other, it is wholly impermissible to therefore conclude that the parties cohabited on the date of such settlement agreement reached. To allow such

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reasoning to exist would lead traversity of justice, that too at the hands of the court that administer the law and deliver justice.

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Clearly, the approach adopted by the learned court below as also appraisal of facts and evidence made by it and the conclusions drawn, are impermissible in law. The conclusion reached as to cohabitation is perverse. That conclusion reached of collusion and concealment has also been reached in complete absence of evidence. The reasoning adopted by the learned court below is completely imagined.

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Even before us, the learned counsel for the respondent does not dispute the correctness of the facts disclosed in the joint petition for divorce filed by the parties. Hence no useful purpose may be served in keeping the present appeal pending any further.

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Accordingly, the present appeal is allowed . The impugned order dated 01.10.2024 passed by Shri V. K. Lal, Principal Judge, Family Court, Sambhal at Chandausi in Case No. 395 of 2023 (Smt. Disha Sharma Vs. Mahesh Chandra), is set aside. The matter is remitted to the learned court below to pass a fresh order, strictly in accordance with law on the strength of material and evidence available before it. Such exercise may be completed preferably before 31.12.2024.

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Order Date :- 6.12.2024 Abhilash

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(Donadi Ramesh, J.) (S. D. Singh, J.)

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Digitally signed by :- ABHILASH SINGH High Court of Judicature at Allahabad

Mahesh Chandra @ Bhudev Sharma v. Smt. Disha Sharma

Case brief

What is this about?

What did the court decide?

Mahesh Chandra @ Bhudev Sharma v. Smt. Disha Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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