Procedural fairness is essential in family law cases; dismissing a counter claim without proper consideration violates principles of justice.

JUDGMENT :

(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)

The present appeal is directed against the judgment dated 25.02.2022 and decree dated 26.02.2022 passed in Matrimonial Case No. 481 of 2011 by the Court of learned Additional Principal Judge, Family Court, Patna whereby marriage between the parties has been dissolved by passing decree of divorce.

2. Being aggrieved by the judgment and decree in favour of respondent against the appellant for dissolution of marriage and it has been prayed to allow divorce in terms of counter claim under Section 23(A) and 25 read with 27 of the Hindu Marriage Act, 1955 as claimed by the appellant.

3. Briefly stated facts of the present appeal is that marriage of Anupma Kumari (appellant/wife) and Prabhash Kumar (respondent/ husband) was solemnized on 09.07.2010 according to Hindu Rites and Customs in the town of Patna. It is claimed that after marriage the appellant/wife arrived at respondent's house but she did not find any comfort and she insisted for separate accommodation. It is alleged that behavior meted out to the respondent/husband was not cordial. Respondent/husband joined his office at Mumbai after nine days of marriage but appellant did not reciprocate the same. It is asserted that appellant and her parents began to pressurize the respondent for separate accommodation. It is further alleged that father of the respondent suffered heart attack on account of undue pressure exerted by the appellant and her parents. On 20.07.2010 respondent’s father was hospitalized in PMCH, Patna and for better treatment he was admitted in Max Hospital, Delhi on 27.07.2010 where Angiography and Angioplasty was done where appellant has not taken pain to ask the well being of the respondent's father. On 24.10.2010, after several requests, appellant came to join the respondent at Mumbai. It was asserted by respondent that the appellant was misbehaving and having nagging approach over trivial matter, and she began to pressurize for separate accommodation. On 14.11.2010, respondent’s elder brother started living separately on account of erratic behaviour and attitude of the appellant and appellant did not co-ordinate in handling the domestic work. On 02.04.2011 respondent’s mother was hospitalized in Kurjee Holy Family Hospital, Patna and appellant, any how, became ready to go to Patna for taking care of respondent’s mother but she lived for two days and went away to her father’s house. On 23.05.2011 the respondent/ husband came to his house with wife/appellant. She did not behave well with respondent’s family rather she became discourteous and created tense atmosphere. On 04.06.2011, she came back to her matrimonial house and on 05.06.2011 the appellant threatened the respondent to implicate in case. On 07.06.2011, she left the matrimonial home after taking all belongings including jewellery.

4. Learned counsel for the appellant submitted that learned Additional Principal Judge, Family Court, Patna has passed the judgment dated 25.02.2022 and decree dated 26.02.2022 without going through the material available on record which is not justified and legal in the eye of law. He further submitted that appellant has already filed counter claim under Section 23 (A) and 25 read with 27 of the Hindu Marriage Act, 1955 but the learned Family Court has not adopted proper procedure for hearing the said counter claim where the appellant herself seeking divorce, permanent alimony and return of articles against the respondent and the said counter claim has not been considered and it has been dismissed without admitting the said counter claim on technical ground. He further submitted that substantial cause of justice has not been done to the appellant as she has herself claimed that torture and misbehavior was committed against her (appellant) from the respondent’s side and respondent/husband himself sought divorce on the same ground in which he himself is a wrongdoer. He further submitted that Family Court has not conside