Smt. Khushabu Mishra Vs Manish Mishra — Matrimonial and Divorce | Chhattisgarh HC (2024)

Smt. Khushabu Mishra Vs Manish Mishra — Matrimonial and Divorce | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

No relief to the petitioner; writ petition dismissed and the stay order passed on 21.03.2024 vacated forthwith, with an expression of hope that the Family Court decides the matrimonial case expeditiously.

Issue for consideration

Whether a divorce suit founded on both adultery and cruelty grounds can be dismissed/rejected at the threshold for non-impleadment of the alleged adulterer, as urged under Order 7 Rule 11(d) CPC and Section 23(1)(b) of the Hindu Marriage Act. +1 more

Court's answer

Where a divorce suit is filed on both adultery and cruelty grounds, the suit cannot be rejected at the threshold merely because the alleged adulterer has not been impleaded as a party, notwithstanding Order 7 Rule 11(d) CPC or Section 23(1)(b) of the Hindu Marriage Act.

Ratio / Principle

Since the burden of proving the allegations in the divorce suit lies on the husband, the suit cannot be rejected on the different grounds raised by the wife.

Key takeaways

The impugned order suffers from no infirmity or illegality and does not warrant interference by the High Court under Article 227 of the Constitution of India; accordingly the writ petition is dismissed and the interim stay order dated 21.03.2024 is vacated forthwith.ratio¶18

Detailed headnote1 paragraphs

Hindu Marriage Act — Divorce suit under S.13(1)(i) & 13(1)(i-a) pleading adultery and cruelty — Wife's application to dismiss the suit as not maintainable for non-impleadment of the alleged adulterer rejected by the Family Court, Raipur — Held, where the suit is founded on both adultery and cruelty, non-impleadment of the adulterer is no ground to reject it at the threshold under Order 7 Rule 11(d) CPC or S.23(1)(b) Hindu Marriage Act — burden of proving the allegations lies on the husband, so the suit cannot be rejected on the grounds raised by the wife — writ petition under Article 227 of the Constitution dismissed; interim stay order dated 21.03.2024 vacated; Family Court hoped to decide the case expeditiously. (Paras 17-20)

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WP227 No. 219 of 2024

Smt. Khushabu Mishra W/o Manish Mishra, Aged About 21 Years R/o Village-Chorgadi Devintola, P.S. And Tahsil- Rampur, Naikin, District-Sidhi (M.P.) --- Petitioner.

Versus

Manish Mishra S/o Jaiprakash Mishra, Aged About 31 Years R/o Kbt-53, Yekta Chowk, Kabir Nagar, Raipur (CG) --- Respondent.

For Petitioner : Mr. A. N. Pandey with Mr. Varun Mishra, Advocates. For Respondent : Mr. Aishwarya Kumar Dubey, Advocate. ---------------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Deepak Kumar Tiwari, J.

Order On Board

12.06.2024

This petition has been filed against the order dated 05.03.2024 passed by the learned First Additional Principal Judge, Family Court, Raipur in Case No.88/2022, whereby, application preferred by the petitioner/wife for dismissal of the suit as not maintainable on the ground of non-impleadment of adulterer, was rejected.

Learned counsel for the petitioner submits that the respondent/husband has filed the suit for divorce against the petitioner/wife under Section 13 (1) (i) & 13 (1) (i-a) of the Hindu Marriage Act alleging that petitioner is having illicit relation with other persons. He draws attention towards the grounds stated in the said application (Annexure-P/2). He also places reliance in the order dated 09.03.2018 passed by this Court in WP (227) No.553/2013 ( Bhaktvatsal Singh Rajput Vs. Mrs. Vandana Rajput ) where the trial Court has directed to implead the adulterer as a party, this Court has held that the Trial Court has rightly made a direction to implead the said person as a

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party, otherwise the application may fail. In view of the aforesaid, learned counsel for the petitioner submits that the trial Court has wrongly dismissed the application of the petitioner, therefore, the same may be allowed and suit filed by the respondent/husband be dismissed.

On the other hand, learned counsel for the respondent supports the impugned order.

Heard learned counsel for the parties and perused the documents available with the petition.

The respondent/husband has filed the application for divorce before the Family Court not only on the ground of adultery but also on the ground of cruelty. When the suit is filed on the both grounds and even if adulterer has not impleaded as a party, the suit cannot be rejected at the threshold under Order 7 Rule 11 (d) of the CPC or Section 23 (1) (b) of the Hindu Marriage Act. Further, since the burden of proof lies on the husband to prove the allegations made by him in the suit before the Family Court, the said suit cannot be rejected on different grounds made by the wife.

For the forgoing, this court does not find any infirmity or illegality in the impugned and thus the same does not call for any interference by this Court invoking its jurisdiction under Article 227 of the Constitution of India.

Accordingly, this petition stands dismissed .

The stay order passed by this Court on 21.03.2024 stands vacated forthwith.

This Court hopes and trusts that the learned Family Court shall make earnest endeavor to decide the case expeditiously.

Sd/-

(Deepak Kumar Tiwari) Judge

Ajay