Allowed

Satrughan Yadav v. Sakun Yadav

Chhattisgarh HC11 Jul 2012FAM/57/2010

Case brief

AI extract

What is this about?

The Division Bench held that Section 23 of the Hindu Marriage Act does not create a bar of limitation. The impugned decree dismissing the divorce suit on grounds of delay was set aside, and the matter remanded to decide on merits.

What did the court decide?

The impugned judgment and decree were set aside, and the case remanded to the Family Judge to decide the suit afresh on merits.

Satrughan Yadav Vs Sakun Yadav — Matrimonial and Divorce | Chhattisgarh HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BILAPUR

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FIRST APPEAli 1^0. ^T^ OF 2010 Ig
APPELLANT Satrughan Yadav, Aged about
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^ [L).A-'t'I/U ^
y-""^jj^r.^^ . 48years, Resident of Kranti
^-•€^^^ J}7T^^- ^ Nagar, Vyapar Vihar Road,
:^
.0@-"
Bilaspur, District-Bilaspur.
'^""
VERSUS

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••^-

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^Sakun Yadav, W/o Satrughan Yadav, Aged 45years, Resident ^ °f Rajendra Nagar, Near Post Office Bilaspur, DistrictBilaspur.

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APPEAL UNDER SECTION 19 OF FAMILY COURT ACT 1984

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READ WITH SECTIOX 28 HINDU MARRIAGE ACT ^•u^^-

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FIRST APPEAL (Ml N0. 57 OF 2010

APPELLANT

Satrughan Yadav

Versus

RESPONDENT

SakunYadav

FIRST APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT. 1984 READ WITH SECTION 28 OF THE HINDU MARmAGE ACT

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Division Bench: Honfble Shri Abhay Manohar Sapre & Hon»ble Shri G. Minhaiuddin. JJ.

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Present: Appellant in person.

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None for the respondent, though sen?red.

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..^ ^-

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ORAL JUDGMENT

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(Delivered on ll^ day ofJuly, 2012)

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Per Abhay Manohar Sapre, J.

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This appeal is filed by the plaintiff (husband) under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 24-04-2010 passed by Family Court, Bilaspur in Civil Suit No.l34-A/2009.

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By the impugned judgment and decree, the learned Family Judge, Bilaspur dismissed the appellant's suit filed for claiming decree ofdivorce against his wife (respondent herein).

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The short question therefore which arises for consideration in this appeal is whether the learned Family Judge was justified in dismissing the appellant's suit and if not, then what orders are called for in the facts of this case.

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With the assistance of the appellant who appeared in person,^wehave perused^{therecordwithaviewtofindoutasto} whether the appellant has any case in support of his appeal.

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It is the case of the appellant -- husband that he married ,with the respondent way back in the year 1981 but unfortunately after few months of the marriage, the wife left him without any reasonable cause and started living separately. It is now since last 28 -29 years, both have been living separately.

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,. '•.i!&:y^^ti., ^* '^ ^/f:v%^ ^ fi. -• 1: '%'^ ^^^_^^''^^ ^'r^^^

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It is basically with these averments, the appellant filed a divorce petition on 20-08-2009 under Section 13 of the Hindu Marriage Act (for brevity, hereinafter referred to as 'the Act9). The appellant also amended his petition which was allowed on 04-012010.f According to the petitioner (appellant) he was entitled to claim a decree for divorce seeking dissolution of their marriage on the ground of desertion falling under Section 13(1) (ib) of the Act because he was deserted by his wife (respondent) for a continuous period not less than 2 years immediately preceding the presentation of the petition for divorce and as per pleadings, it is for a period of 29 years. The petitioner thus claimed a decree of dissolution of marriage on this ground.

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It appears from the record that proceedings were held exparte^{becausedespiteserviceofnoticeontherespondent/wife,} she did not appear in the proceedings.

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The learned Family Judge however, dismissed the petition filed by the appellant essentially on the ground that it is hit by Section 23(l)(d) of the Hindu Marriage Act. In other words, in the opinion of the Family Judge as it appears on perusal of his reasoning that since the petitioner did not approach the Court within time as prescribed under Section 23 (l)(d) ibid and, therefore, no orders can be passed in his favour for grant of decree ofdivorce, as claimed by him.

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f -'

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It apposite to quote the finding of the learned Family Judge contained in paragraphs 7, 8, 9 and 10 which led to dismissal of the suit:

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"07. W^<^ ^S ~^\ ^TTS^ ^ 3Tcra^T "^ ~^S "5TTC ?^T t f^ ^FcPT ^ "c^ ^HN 3)|c|clcb ^RT ^Rt 1981 ^ ^ f^cTR- T^T Tn^T T^ ^ Tn? ^ f^Tcrt? f^" ^TR^T ^ft^r ^ ^rf^s^ ^ ^t ^ f^s' ^TmTT 29^{^RtiTK^ll^ld^l} ^T ^ri f^TT^TPTT t I

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•Q^ 08. 3i|c|c,^ ^RT T^fT ^ //flHT f^jt ^TRUT" ^p^ t^ f^rf^r ^^{^ft'^^"f^^} ^rf^pm ^ yiciyi-fi' ^ ^TM-^{//'?pq^r} ^ft^T ^ "g4?^TR^T iTTsRT" ^TT "f^TT? R-^c{ ^// ^PT^T ^FI^rf^T ^ ^ftrR 'cpp^nft ^r f^zr ^- ^r ^r^ ^RUT ^l^l^l^ ^ ^RST W^: TT€f f^TT 7PTT tl

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'^ ^...^-..... 1s 'A •" ^B^m^. '^^^^^-f'

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^\ ^ R^)c^ f^TT? f^^ ^?t mT<ft i^ ^T^P gT?T 'f^FTT f^ft ^RUT 29 ^ ^t oNt wprN^r "^" "f^T^r" ^ ^l' TTf cbl4c||^| ^T, ^rfSrf^FT ^t ^TNT 23 (l) ('q') ^ ^ToTt^ ^ '^^ ^, ^^cb!u| ^ ^rqTcT ^ OT^T f^R^T f^T ^TT^ 1qt^T 1qTCft ^l

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\34N!l4d 'f^c^ ^ ^UTFT ^cf^q ^TT^p ^T ^TT^T f^R^T ^n ^TRTT 11 ych>^u| z^ TT^^rzft cf^ -^^ ^ TTSTC^R 3FRT-3PMT ^TK ^?T ^PT ^7T ^^ ^ <lRlcc||^IT1 ^Tf |"

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It is against this dismissal of the suit, the plaintiff/husband has filed this appeal under Section 19(1) ibid.

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•^

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Having perused the record of the case, we are inclined to allow this appeal and while setting aside of the impugned decree, remand the petition to Family Judge for deciding the same afresh, on merits, in accordance with law.

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As observed supra mere perusal of the pleadings contained in the petition would go to show that the petitioner/husband has filed a suit claiming decree for divorce on one of the grounds enumerated in Section 13(1) namely "desertion" which falls under Section 13 (1) (ib).

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Undoubtedly, whether the husband or the wife, either of them is entitled to claim a decree of divorce for dissolution of marriage on any of the grounds enumerated under Section 13(1) of the Act. The Hindu Marriage Act does not provide for any period of limitation for filing a suit for divorce or for claiming any relief specifled in the Act except providing a bar under Section 14 in filing a petition. It therefore, necessarily follows that so long as the marriage subsists between the parties, both i.e. husband or wife as the case may be has a right to claim any relief under the Act by filing a petition against each other viz., divorce, judicial separation, declaration of marriage as being void, maintenance pendente lite or permanent etc. regardless of any limitation as such. In other words, a cause of action for claiming these reliefs essentially is in the nature of continuous cause of action and, therefore, if any proceedings are instituted by either parties i.e. husband or wife as the case may be during subsistence of their

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' '.:.^..^""-<-' y^^-^ '€\ ^ ; ^ %lllt. 1

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marriage against each other, then the Court cannot dismiss such suit as being barred by limitation under Section 23(l)(d) ibid.

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Section 23 reads as under:

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a23. Decree in proceedings." (1) In any proceeding under

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this Act, whether defended or not, if the court is satisfied

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that-

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(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c)^ofclause (ii) of Section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and,

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(b) where the ground of the petition is the ground specified [***] in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts coinplained of, or where the ground of the petition is cruelty the petitioner has not in any raanner condoned the cruelty, and

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[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence and]

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(c) [the petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent, and

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(d) there has not been any unnecessary or iraproper delay in instituting the proceeding, and

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(e) there is no other legal ground why relief should not be granted, then, in such a case, but not otherwise, the court shall decree such relief accordingly.

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(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any ofthe grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of Section 13.]

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[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjoum the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report].

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•..,.£^y rl ^^. '•; y^^.^."?^S®-.,I-^

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[(4) In every case where a niarriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]??

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Perusal of Section 23 ibid would show that it provides that if "the Court comes^ to a conclusion on facts that any of the grounds enumerated therein for grant of any relief aexists?? in favour of the petitioner, then the Court will not grant any such relief on merits unless it also records a finding that petitioner is not taking any advantage of his/her own wrong or disability for claiming such relief and that petition is not flled in collusion with the respondent and that there is no unnecessary or improper delay in filing suit and that there is no other legal ground to deny the grant of relief.

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It is therefore, necessary for the Court to first record a finding on merits that relief claimed by the petitioner "exists?? in his favour and then it has to further record a fmding that he/she did not take advantage of his/her wrong or that there is no such undue delay and that there is no other legal ground to deny for grant of such relief. It is only then the relief claimed by the petitioner^canbe granted^elsenot. In other words, it is one thing to say that Court may decline to grant relief on the facts in a particular case notwithstanding making out a case for grant of such relief on account of case falling under any of the clauses of Section 23 and it is another thing to say that Section 23 would operate as a bar of limitation to file such suit by any of the spouce.

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We cannot therefore, concur with the reasoning and conclusion arrived at by the Family Judge when she was essentially swayed away by the conditions of Section 23 as virtually treating Section 23 as creating a bar in filing suit without first examining the factual ground in the light of the evidence adduced by the appellant to find out as to whether any case under Section 13(l)(ib) for desertion has been made out in his favour and if so whether he can be granted decree for dissolution of marriage on such ground. Some observations while narrating the factual case of the petitioner cannot be said to be a finding on merits or

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:>.^.. •-<v~. " ^

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law consideration of petitioner's case on merits and we cannot approve of such casual approach in deciding the petition in the manner in which it was decided.

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To conclude, the appeal succeeds and is allowed. The impugned judgment and decree is set aside. The case is remanded to Family Judge, Bilaspur for deciding the suit afresh on merits with a view to find out as to whether the decree for divorce on the ground claimed by the petitioner in his petition is possible on the facts and evidence adduced or not and while so doing, to keep in mind the requirement of Section 23 and then pass^{appropriatejudgment/decreeaccordingly.}

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The appellant shall appear before the Family Judge on 13-08-2012. The Trial Court shall issue fresh notice to the respondent (non-applicant/wife) before proceeding with the petition because after the petition is revived, the respondent is entitled to notice before passing any final order in the petition. The appellant will be entitled to adduce further evidence in support of his petition in addition to what he has already adduced. The respondent shall also be afforded an opportunity to adduce additional evidence in support of her case and file written statement in case if she wishes to do so and contest the case.

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Let the petition be decided within sbc months after undertaking the reconciliation proceedings between the parties prior to proceeding in the case because it is the duty of the Family Judge to decide the petition by first making effort to resolve the disputes arising between the parties to maintain peace and harmony in the family and then decide on merits, if occasion so anses.

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Registry is directed to send the original record of the case forthwith to the concerned family Court so that it can reach before Family Court on the date fixed by this Court.

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Kvr

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No cost. Sd/Abhay Manohar Sapre Judge

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Sd/G. Minhajuddiu Judge

Satrughan Yadav v. Sakun Yadav

Case brief

What is this about?

What did the court decide?

Satrughan Yadav v. Sakun Yadav

Case brief

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