2009 Supreme(Bom) 1637

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE S.A. BOBDE & THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA
Mrs. X
Versus
Mr. Y
FAMILY COURT APPEAL NO.204 OF 2007
Decided on : 02-12-2009

Headnote:Hindu Marriage Act, 1955 - Section 13(1)(i-a) - Grant of decree of divorce - On ground of cruelty and desertion by wife - Appeal against by wife - Wife earlier filed petition for restitution of conjugal rights - Later refused to reside together - She thrown out husband from home which husband rented for her - Held - Wife/appellant threw husband out of his own house - Refused to live with him at new place of his posting - Refusal to cohabit proved - Fact of desertion proved - Impugned judgment and decree warrants no interference - Upheld - Appeal dismissed. - In the present case, Courts find that the respondent has established and in fact, the appellant has not denied, that she did not allow the respondent to cohabit with her at the house in Surat, when he visited on 12th January, 1997. She threw him out of the very house, which he had rented for her to live in, threatened him with dire consequences. This incident occurred over and above the fact that she herself had refused to travel and reside with him at Valsad, after he was posted there on 1st August 1996, ostensibly because she was teaching and giving tuitions at the time in Surat. The Family Court has observed that there is no challenge by the appellant to the evidence of the respondent that she was not interested in cohabiting with him at Valsad. In any case, Court finds that merely because the respondent had moved to Valsad, due to his transfer, it cannot be considered to be reasonable cause for the appellant refusing to cohabit with him when he visited her in Surat, and in fact constitutes wilful neglect on her part. Her conduct on the whole, is evidence of animus deserendi. The incident at Surat clearly compelled the respondent to leave and stay away, from the matrimonial home. There is no dispute as to the factum of separation i.e. that the parties did not reside together from the date of the incident at Surat i.e. 12th January, 1997, until this petition was presented on 8th October 2003 and thereafter.

       In the result, the divorce decree is upheld under Section 13(1)(i-b) against the appellant on the ground of desertion. The appeal is hence dismissed.

       Hindu Marriage Act, 1955 - Sections 13(1)(i-a) and 14 - Divorce petition - Cruelty - Decree of divorce granted by Family Court - Appeal against by husband - Court interviewed parties and found no reconciliation possible between them - Held - Respondent-wife deposed instances of physical cruelty - Decree obtained within one year from date of marriage even by misrepresentation not invalidate decree - Trial Court granted leave to respondent-wife to file petition for divorce - Court found behaviour of appellant made cohabitation of respondent with him impossible - Impugned judgment and order of Family Court just and proper - Warrants no interference - Appeal dismissed. - Before, Court part with this judgment, Court must mention the other contention of the counsel for the appellant, where he submits that the petition for dissolution on the ground of cruelty as been presented before the expiry of one year from the date of marriage and was therefore untenable before the trial Court due to the bar laid down in Section 14 of the Hindu Marriage Act, 1956. The marriage took place on 17.4.1998 and the petition for divorce was presented on 20.2.1999. Section 14 of the Hindu Marriage Act reads as follows :

       "14. No petition for divorce to be presented within one year of marriage. - (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage :

       Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree do so subject to the condition that the decree shall not have effect until after expiry of one year from the date of the marriage or may dismiss the petition with out prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

       (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.’’

       It is obvious from a bare reading of the section that the petition can be presented before the expiry of one year from the date of marriage, by obtaining leave of the Court. In any case, the proviso suggests that a decree obtained within one year on the basis of a defective bone, even one obtained by misrepresentation does not invalidate the decree ipso facto ; but the Court has a discretion to order that the decree shall become effective after a year. A defect in the nature of leave granted by the Court is a mere irregularity which the trial Court may not act upon. The Appellate Court certainly has a wide discretion to refuse to interfere on such a ground. Court accordingly, refuses to go into the question whether the lease was properly granted at this stage of the proceedings. Court notes that in the present case, the trial Court had indeed granted leave to the respondent to present the petition for divorce. According to the counsel for the appellant, the leave has not been granted in accordance with the law i.e. on considerations germane to the provision. Court however finds that at no stage throughout the trial, or in the Memo of appeal, has the appellant raised any ground pertaining to the correctness of the leave granted by the Court. Rather, the grounds raised by the appellant in the Memo of appeal show that the appellant questioned the validity of the proceedings on the basis that no leave had been sought or granted. Only after it was pointed out that, in fact, the Court had granted leave, did the counsel for the appellant sought to contend that leave was not granted properly. The appellant did not at any stage of the trial, after receiving notice of the petition, raise any objection about the presentation of the petition within one year and that leave was not obtained. Obviously, no objection was raised because the appellant was aware of the order granting leave, and did not wish to object. It is clear that this objection is being raised at this stage only because the decision has gone against the appellant.

       That apart, Court finds that the facts of the case, as found by the Family Court and upheld by Court, justify the presentation of the petition before the expiry of one year from the date of marriage. It is true that Section 14 has been enacted with the object of discouraging young spouses from taking recourse to legal proceedings for divorce in a frivolous and irresponsible manner. However, the section provides two exceptions to this rule i.e. where the petitioner faces exceptional hardship or exceptional depravity at the hands of the respondent. It is for the Judge, who hears the application to decide as per the circumstances whether prima facie a case of exceptional hardship or depravity has been made out. The Appellate Court will not interfere with the trial Judge’s discretion unless he has proceeded on a wrong principle of law, or failed to have regard to some material consideration or some gross injustice has occurred. Meghanatha Nayagar v. Shrimati Susheela, AIR 1957 Mad 423. Further, Section 14(2) requires that the Court, in such petition, ought to have regard to firstly, the interests of the children, if any, and secondly, of any possibility of reconciliation between the parties before the expiration of one year from the date of marriage. As is apparent, there was no possibility of reconciliation between the parties at any stage after the respondent left the matrimonial house, in view of the cruel treatment meted out to her. Court found that the behaviour of the appellant made cohabitation of the respondent with him impossible and therefore, no reconciliation was possible. As of now, it is clear that the parties have not cohabited for a period of 12 years since the date on which the respondent left the appellant’s company. Court finds that the behaviour of the appellant toward the respondent did indeed put her through exceptional hardship and left no scope for reconciliation. Court hence finds no merit in the argument of the respondent that the trial Court had granted leave without justification.

       In the result, Court finds that the judgment and order of the Family Court is not liable to be interfered with and there is no merit in Family Court Appeal No. 48 of 2006, which is hereby dismissed.