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2020 Supreme(All) 513
IN THE HIGH COURT OF ALLAHABAD
ANIL KUMAR, SAURABH LAVANIA, JJ.
Aayush Rastogi - Appellant
Versus
Principal Judge Family Court Lucknow Anr - Respondent
F.A. No. 106 of 2015
Decided on 29-04-2020
Advocate Appeared:
For the Appellant : Sudeep Kumar
Point of Law:
Supreme Court ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against each other amounts to cruelty and continuance of such marriage is a further act of cruelty. Therefore, following the principle of ''live and let live' and the precedent laid down by the Apex Court, it is desirable and expedient in the interest of justice to set-aside the impugned orders passed by the Family Court and to allow the appeals.
Headnote:
Hindu Marriage Act, 1955 – Sections 5, 12, 19, 28 – Divorce – By means of instant appeal under Section 28 of Hindu Marriage Act, 1955 read with Section 19 of Family Court Act, 1984 appellant has challenged judgment and order passed by Principle Judge, Family Court, in Regular Suit whereby divorce petition under Section 12(1) (c) of Act, 1955 moved by appellant was dismissed – Held, there is no likelihood of appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of marriage and matrimonial bond is beyond repair and there is no chance of its being retrieved and relations between the parties are sufficiently spoiled and therefore, no fruitful purpose would be served in maintaining matrimonial relations between parties, accordingly Court is of view that on ground of irretrievable breakdown of marriage, appellant is entitled for relief of dissolution of marriage – Appeal Allowed (Paras 34, 35)
Facts of the Case:
Marriage between appellant-Aayush Rastogi and respondent no.2-Smt. Malvika Rastogi was solemnized as per the Hindu Rites and Rituals on 11.12.2011 at Lucknow. After the marriage it was revealed to the appellant that the marriage of respondent no.2- Smt. Malvika Rastogi was solemnized without her free consent and she was not happy with the appellant and she was of the view to go back to Kolkata.
Finding of the Court:
There is no likelihood of appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of marriage and matrimonial bond is beyond repair and there is no chance of its being retrieved and relations between the parties are sufficiently spoiled and therefore, no fruitful purpose would be served in maintaining matrimonial relations between parties, accordingly Court is of view that on ground of irretrievable breakdown of marriage, appellant is entitled for relief of dissolution of marriage.
Result: Appeal Allowed
JUDGMENT :
ANIL KUMAR J.
1. Heard Sri Sudeep Kumar, learned counsel for the appellant and gone through the record available with this appeal. Despite of service through publication, no one appeared for respondent no.2-Smt. Malvika Rastogi.
2. By means of the instant appeal under Section 28 of the Hindu Marriage Act, 1955 (in short "Act, 1955") read with Section 19 of the Family Court Act, 1984 (in short "Act, 1984"), the appellant has challenged the judgment and order dated 07.11.2015, passed by the Principle Judge, Family Court, Lucknow in Regular Suit No. 1268 of 2012 (Aayush Rastogi Vs. Smt. Malvika Rastogi), whereby the divorce petition under Section 12(1) (c) of Act, 1955 moved by the appellant was dismissed.
3. Facts, in brief, of the present case as submitted by the learned counsel for the appellant are to the effect that the marriage between appellant-Aayush Rastogi and respondent no.2-Smt. Malvika Rastogi was solemnized as per the Hindu Rites and Rituals on 11.12.2011 at Lucknow. After the marriage it was revealed to the appellant that the marriage of respondent no.2- Smt. Malvika Rastogi was solemnized without her free consent and she was not happy with the appellant and she was of the view to go back to Kolkata. Thereafter, the respondent no.2-Smt. Malvika Rastogi went back to Kolkata and returned to Lucknow on 23.12.2011 with appellant.
4. Thereafter, on 29.02.2012 the respondent no.2- Smt. Malvika Rastogi made an attempt to commit suicide but due to timely intervention of the family of the appellant, the respondent no.2 could not be succeeded and thereafter the parents of the appellant immediately rushed to Kolkata and this time the respondent no.2- Smt. Malvika Rastogi expressed that if her marriage with the appellant is dissolved by any competent court of law, she shall have no objection to it. It is also stated that the respondent no.2 Smt. Malvika Rastogi during her stay with appellant did not perform her matrimonial duties.
5. Thereafter, the appellant filed a petition on 31.05.2012 under Section-12 of Act, 1955 registered as Regular Suit No.1268 of 2012 (Aayush Rastogi Vs. Smt. Malvika Rastogi) and respondent no.2-Smt. Malvika Rastogi filed her written statement on 04.07.2013 wherein she admitted the averments made in the plaint. Later on, the respondent no.2- Smt. Malvika Rastogi withdrew her written statement and filed another written statement on 18.11.2013.
6. Thereafter, the matter in issue came up before this Court by means of the Writ Petition No.7025 (M/B) of 2013 which was dismissed vide order dated 11.10.2013 with an observation that in case the parties have consented then the Court below may consider the request for consent decree.
7. Subsequently, respondent no.2- Smt. Malvika Rastogi approached Hon'ble Supreme court by filing Transfer Petition (Civil) No.461 of 2014 (Smt. Malvika Rastogi Vs. Aayush Rastogi) which was also dismissed vide order dated 15.01.2015.
Thereafter, the Principal Judge, Family Court, Lucknow issued notices to the respondent no.2-Smt. Malvika Rastogi but she did not appear and consequently the Principal Judge, Family Court, Lucknow vide order dated 26.03.2014 has proceeded ex-parte against the respondent no.2-Smt. Malvika Rastogi and dismissed the suit on 07.11.2015 with following observations:-
izLrqr okn oknh }kjk i{kdkjksa ds e/; gq, fookg dks 'kwU;dj.kh; fookg mn~?kksf"kr fd;s tkus ds vk'k; ls fgUnw fookg vf/kfu;e 1955 dh /kkjk 12 ds rgr nkf[ky fd;k x;k gSA mDr /kkjk dh mi/kkjk ¼1½¼x½ ds vuqlkj dksbZ fookg bl vk/kkj ij fd ;kfpdknkrk dh lEefr cy ;k deZ&dk.M dh izd`fr ;k izR;FkhZ ls lEcfU/kr fdlh rkfRodrF; ifjfLFkfr ds ckjs esa diV }kjk vfHkizkIr dh x;h Fkh rks ,slk fookg 'kwU;dj.kh; gksxk vkSj vd`rk dh vkKkfIr }kjk vd`r fd;k tk ldrk gSA izLrqr ekeys esa oknh }kjk ;g dgk x;k gS fd izfrokfnuh dh lEefr mldh eka }kjk cyiwoZd rFkk diViwoZd ml ij ncko cukdj izkIr dh x;h gS vkSj blh vk/kkj ij fookg dks 'kwU;dj.kh; mn~?kksf"kr fd;s tkus dh ;kpuk dh x;h gSA U;k;ky; dh jk; esa fgUnw fookg
