Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Kar) 121

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. Nagarathna, M. G. Uma, JJ.
Leo John, S/o. S.J. Peter – Appellant
Versus
Smt. Eugenia Preethi, D/O. Louis R. Dominic – Respondent
Miscellaneous First Appeal No.6563 OF 2018 (FC) Connected With Miscellaneous First Appeal No.7501 OF 2018 (FC)
Decided On : 20-01-2021

Advocates:
Advocate Appeared:
For the Appellant :Sri Nandish Patil, Advocate
For the Respondent:Sri A. Ram Mohan, Advocate

Point of Law: Divorce - Where a petition on the ground of irretrievable impairing of the marriage tie and a petition on the ground of fault are presented concurrently, the judge shall rule first on the petition on the ground of fault. Where he dismisses the latter, the judge shall rule on the petition for divorce on the ground of irretrievable impairing of the marriage tie

Headnote:
Special Marriage Act, 1954 - Section 27(1)(e) and (d) read with 37 - Pondicherry (Administration) Act, 1962 - Section 4(1) - Hindu Succession Act, 1956 - Hindu Minority and Guardianship Act, 1956 - Sections 3 and 2 - Hindu Adoptions and Maintenance Act, 1956 - Code of Criminal Procedure, 1973 - Section 125 - Counter claim - Seeking divorce - Decreed - Parties herein got married under registration dated before Registrar of Marriages, Mairie d’Oulgaret, , (Pondicherry) - It is also to be noted that, parties thereafter registered their marriage-which was also solemnised at St. Andrew’s Church, which took place on before Registrar of Marriages - Said marriage was as per Christian rites and customs - It is stated that, wife was living - She studied law and enrolled as an Advocate in Karnataka Bar Council - After marriage, couple lived for a few months - Whether Family Court was justified in dismissing petition as well as counter claim filed under Special Marriage Act?- whether parties are entitled to divorce under the French Civil Code? –
Finding of the Court:
Court have also referred to recent judgment of Hon’ble Supreme Court in case of Rajnesh v. Neha (supra) - Although, said judgment has been pronounced under Section 125 of Code of Criminal Procedure, 1973 nevertheless, Supreme Court has considered certain relevant laws under which claim for maintenance of permanent alimony could be made and has ultimately, formulated manner in which permanent alimony of maintenance could be awarded to parties by formulating Enclosure-I being Affidavit of Assets and Liabilities for Non-Agrarian Deponents and Enclosure-II containing Affidavit for Agrarian Deponents - Same could be applied in instant case by way of analogy - It is needless to observe that Family Court shall first ensure that sum of Rs.25.00 lakh has been paid to wife by husband and shall decide further claim of permanent alimony to be made by wife in accordance with law by taking into consideration objections, if any by husband to said claim –
Result: Appeals are allowed-in-part and disposed in aforesaid terms.

JUDGMENT :

NAGARATHNA, J.

Though these appeals are listed for Admission, with the consent of learned counsel on both sides, they are heard finally.

2. M.F.A. No.6563 of 2018 has been filed by the husband while M.F.A. No.7501 of 2018 has been filed by the wife, both assailing the judgment and decree passed in M.C. No.3116 of 2011 dated 5-7-2018 by the IV Additional Principal Judge, Family Court, Bengaluru.

3. At this stage itself, it may be stated that the petition filed by the wife under Section 27(1)(e) and (d) read with Section 37 of the Special Marriage Act, 1954, (hereinafter referred to as ‘the Special Marriage Act’) as well the counter claim filed by the husband under Section 35 of the Special Marriage Act were both dismissed by the Family Court. Being aggrieved, the husband and wife are in appeal before this Court.

4. We also state that the reason for dismissal of the petition filed by the wife as well as the counter claim filed by the husband before the Family Court was on the premise that the Special Marriage Act did not apply to the parties. Therefore, an interesting question arises in these appeals, namely, as to the law that is applicable to the parties so as to seek divorce and permanent alimony.

5. Briefly stated the facts are, the parties herein got married under registration dated 19-10-2009 before the Registrar of Marriages, Mairie d’Oulgaret, Jawahar Nagar, Puducherry (Pondicherry)-605 010. It is also to be noted that, the parties thereafter registered their marriage-which was also solemnised at St. Andrew’s Church, Reddiarpalayam at Puducherry which took place on 19-10-2009-before the Registrar of Marriages, Puducherry-605 010 on 21-10-2009. The said marriage was as per Christian rites and customs. It is stated that, the wife was living in Bengaluru since June 2003. She studied law at Bengaluru and enrolled as an Advocate in Karnataka Bar Council, Bengaluru, on 3-4-2009. After marriage, the couple lived in Puducherry for a few months. There were certain differences between the parties and hence, the wife filed the petition under the provisions of the Special Marriage Act seeking divorce in M.C. No.3116 of 2011.

6. In response to the summons and Court notices issued by the Family Court, the husband appeared and filed statement of objections and denied the averments and allegations made by the wife, while at the same time making certain allegations against her. He also filed a counter claim seeking divorce under Section 35 of the Special Marriage Act. The wife filed rejoinder to the said counter claim before the Family Court.

7. Thus, on account of differences between them, the wife filed the petition and the husband filed the counter claim under the provisions of the Special Marriage Act making certain allegations against each other and seeking for a decree of divorce. The wife sought permanent alimony of Rs.2.00 crore. Subsequently, she amended the petition to seek permanent alimony of Rs.10.00 crore.

8. The wife examined herself as P.W.1, her father as P.W.2 and got marked 63 documents as Ex.P.1 to Ex.P.63. The husband examined himself as R.W.1 and got marked 47 documents as Ex.R.1 to Ex.R.47. After hearing the arguments of respective counsel, the Family Court raised the following points for its consideration:

“i. Whether the provisions of Special Marriage Act are applicable to the parties to this petition?

ii. Whether petitioner proves that the respondent treated her with cruelty?

iii. Whether the petitioner proves that the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent?

iv. Whether the respondent proves that the petitioner treated him with cruelty, as averred in the counter claim?

v. Whether the respondent proves that the petitioner deserted him for a continuous period of 2 years or more, immediately preceding the presentation of the

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2021 Supreme(Kar) 121

Cases Referred (1)