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2025 Supreme(Guj) 1937
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, N.S. SANJAY GOWDA, JJ.
Kamalrukh Tehmul Sethna - Appellant
Versus
Tehmul Burjor Sethna & Ors. - Respondents
R/First Appeal No. 1487 of 2024
Decided On : 05-08-2025
For the Appellant : Ms. Kruti M. Shah.
For the Respondents: Aditya C. Yagnik, Jayani B. Shah.
Limitation for divorce on adultery only begins after definitive evidence of the act, ensuring fair access to justice in matrimonial disputes.
Headnote:(A) Parsi Marriage and Divorce Act, 1936 - Sections 32(d) and 32(dd) - Appeal against order dismissing divorce petition for adultery on the grounds of limitation - Appeal allowed, ruling that the two-year limitation starts from the date of evidence confirming adultery, rather than from the initial suspicion - Litigant's prior diligence considered relevant for limitation application. (Paras 1-26)
(B) Limitation in Divorce - The two-year limitation for filing a divorce petition on adultery does not begin until the spouse has definitive knowledge of the adulterous conduct, as established by an expert report. (Paras 6, 26)
(C) Judicial discretion in Family Matters - Courts ought to exercise caution in rigidly applying technicalities when emotional and relational implications are significant. (Paras 25, 26)
Facts of the case:
The appellant, married to the respondent for 27 years, discovered explicit messages indicative of adultery on 08.10.2014, leading to a divorce petition filed on 13.10.2016. The lower court dismissed her petition for being time-barred, prompting this appeal.
Findings of Court:
The starting date of the limitation period for filing a divorce for adultery should be the date of confirmation of adultery via an expert report, not merely when suspicion first arose.
Issues: The central issue was whether the suit for divorce filed after two years, based on knowledge of adultery, was time-barred under the Act.
Ratio Decidendi: The Court ruled that the appellant's knowledge and subsequent verification of facts should redefine the limitation commencement date and that technicalities should not preclude access to justice in family law.
Result: Appeal allowed; the suit is to proceed on both grounds of adultery and cruelty.
| Table of Content |
|---|
| 1. background of marriage and divorce proceedings. (Para 2 , 3 , 4 , 5) |
| 2. arguments about the limitation period for adultery claims. (Para 6 , 7) |
| 3. court's ruling on the relevance of dates. (Para 8 , 11 , 20) |
| 4. understanding the statutory limitation period for divorce on adultery. (Para 15) |
| 5. conclusion allowing the appeal and quashing the time-bar ruling. (Para 26 , 27) |
JUDGMENT :
A.Y. KOGJE, J.
1. This appeal is filed against the order dated 20.01.2024 passed by the Principal District Judge, Surat and Parsi Matrimonial Court, Surat. Impugned order was passed on preliminary issue of limitation raised by respondent-husband in Special Marriage Petition (suit) No.6 of 2016, wherein wife had sought divorce under the Parsi Marriage and Divorce Act, 1936 (hereinafter referred to as “the Act” for short).
2. The brief facts of the case that the appellant-wife got married to respondent no.1 on 08.11.1987 according to Parsi Zoroastrian rites and rituals in Ahmedabad. Around October 2014, as the appellant-wife was facing an issue with her phone, her husband gave his old phone to her. On 08.10.2014, while setting up her phone she came across Whatsapp messages and emails consisting of explicit photographs and videos, wherein the respondent-husband was chatting with several women simultaneously. The appellant-wife thereafter left her matrimonial home and filed a complaint at Vastrapur Police Station on 16.11.2014. Thereafter, upon going to the matrimonial home along with P.I. Ramanuj and her friends, the respondent-husband upon being confronted regarding his affairs with multiple women he admitted to it but denied the fact that he abused the appellant-wife and accused her of not having any physical intimacy for over 10 years.
3. The respondent-husband filed a restitution petition being Family Suit No.192 of 2015 (Parsi Suit No.24 of 2016) before the Family Court, Ahmedabad on 02.02.2015. The appellant- wife filed Parsi Suit No.5 of 2015 before the Parsi Chief Matrimonial Session in Bombay High Court on 26.03.2015seeking divorce.
3.1 The appellant-wife has thereafter filed Transfer Petition (Civil) No.612 of 2015 before the Hon'ble Supreme Court for transferring Family Suit No.192 of 2015 from Family Court, Ahmedabad to Family Court, Mumbai. The said transfer petition was disposed of by order dated 11.12.2015 by transferring the proceedings of Family Suit No.192 of 2015 from the Family Court, Ahmedabad to Family Court, Mumbai by clarifying that in case the Family Court, Mumbai finds that it has no jurisdiction in the matter, it shall transfer the said case to such court as may be competent. The Review Petition (Civil) No.97 of 2016 filed by the respondent-husband against the said order was dismissed by the Hon'ble Supreme Court by order dated 21.01.2016.
3.2 Thereafter, the respondent-husband in Parsi Suit No.5 of 2015 has filed Notice of Motion No.12 of 2015 seeking dismissal of suit for want of jurisdiction or alternatively to return the plaint to the appellant-wife (plaintiff) for presentation to the proper court which was allowed and the suit by order dated 25.08.2016 was transferred to the District Court at Surat in Gujarat along with the restitution petition being Family Suit No.192 of 2015 as there is an empanelled jury of delegates in Surat. Thereafter, there was one correction order on 02.10.2016. Against the said order dated 25.08.2015, the appellant-wife filed Appeal No.343 of 2016 before the High Court of Judicature at Bombay and the Appellate Bench of the High Court of Bombay by order dated 28.09.2016, disposed of the said appeal by dismissing both the suits, i.e Family Suit No.192 of 2015 as the respondent- husband withdrew the same and Parsi Suit No.5 of 2015 as it was withdrawn by the appellant-wife and the Court has reserved specific liberty to file fresh suits, in accordance with law.
3.3 Thereafter, vide order dated 18.12.2017, the entire proceedings along with the documents presented in Parsi Suit No.5 of 2015 ca
