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IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal and Rajeev Misra, JJ.
Dimple Tyagi - Appellant
Vs.
Himanshu Tyagi - Respondent
First Appeal Defective No. 373 of 2019
Decided On: 19-12-2019
Family Courts Act, 1984 – Section 19 – Hindu Marriage Act, 1955 – Section 14 – Divorce – Strained Relations – Appeal under section 19 of Family Courts Act, 1984 has arisen from judgment and order passed by Principal Judge, Family Court, Ghaziabad in Original Suit rejecting application for entertaining Petition under section 14 of Hindu Marriage Act, 1955 before expiry of one year from the date of marriage and returning plaint to plaintiff-appellant being pre-mature. – Held, Court find that initially it provided a period of three years from the date of marriage. – It was amended in 1976 and period of three years was reduced to one year. – Proviso to section 14 is intended to relax one year's limit though in very exceptional cases. – It, however, enables Court to exercise discretion to grant leave to present such petition before expiry of one year's limit in case of exceptional hardship to petitioner or exceptional depravity of respondent. – Court while considering application to grant leave for entertaining application within one year, must not act in a casual pedantic manner but should look into the objective intention and spirit of Legislation. In deciding an application to leave, no elaborate enquiry is required. – It does not require to be considered as a preliminary trial. – Court in exercise of discretion to grant leave, should take into consideration the petition and objection, if any. – Application was filed by both the parties and there was no objection. – It is not the case that any fact was concealed by parties or whatever they had stated in the application was incorrect. – In these facts and circumstances, the manner in which application has been dealt with by Court below, appears to be unfair, illegal and unreasonable. – In fact, from the order which we have quoted above, we could not discern any application of mind and valid reason on the part of Court below for declining to grant leave. – Point for determination, formulated above, therefore/is answered in favour of appellant. Impugned judgment and order is accordingly held unsustainable. – Appeal Allowed
JUDGMENT :
Sudhir Agarwal and Rajeev Misra, JJ.
1. The delay in filing this appeal having been condoned vide order of date passed on Delay Condonation Application, as requested by Counsels for both the parties, we proceed to decide this appeal at this stage on the basis of paper book of the appeal itself since a short legal issue is involved in the matter.
2. This appeal under section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") has arisen from judgment and order dated 10.5.2019 passed by Principal Judge, Family Court, Ghaziabad in Original Suit No. 188 of 2019 rejecting application for entertaining Petition under section 14 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955") before expiry of one year from the date of marriage and returning plaint to plaintiff-appellant being pre-mature.
3. Facts in brief, giving rise to present appeal are that appellant, Smt. Dimple Tyagi and respondent, Himanshu Tyagi were married according to Hindu rituals on 9.2.2019. The marriage was solemnized at Ghaziabad. After one week of marriage, both the parties developed strained relations and differences as a result whereof appellant came to her parents' residence on 10.3.2019 and residing thereat since then. Both the parties ultimately found it difficult to continue in the matrimonial relationship with each other, hence resolved to seek divorce with mutual consent and for this purpose an application dated 9.5.2019 under section 14' of Act, 1955 was filed by both the parties in the Court of Principal Judge, Family Court, Ghaziabad which was registered as Petition No. 188 of 2019. Since application was filed within one year of marriage, they also sought permission of Court below to entertain application before expiry of period of one year and allow mutual divorce in terms of compromise which was recorded in the form of an affidavit dated 5.4.2019, filed before Court below.
4. The application came up for consideration before Family Court on 10.5.2019. It rejected application seeking permission for filing divorce petition with mutual consent before expiry of one year on the ground that as per report of Munsarim, one year period has not elapsed and there is no sufficient reason to grant permission to the parties to move application under section 14 of Act, 1955 before expiry, of period of one year. The short order passed by Family Court reads as under:
vaxhdj.k ds fcUnq ij lquk rFkk eqalfje dh vk[;k dk voyksdu fd;kA eqalfje dh vk[;k ds vuqlkj i{kdkjks dh 'kknh dks vHkh ,d o"kZ dh vof/k iw.kZ ugh gqbZ gSA mHk; i{k dh vkSj ls /kkjk 14 fgUnw fookg vf/kfu;e ds varxZr mDr ;kfpdk dks le; iwoZ nkf[ky djus dh vuqefr pkgh x;h gSA
lquk o eqalfje vk[;k dk voyksdu fd;kA
eqalfje vk[;kuqlkj i{kdkjks dh 'kknh dks vHkh ,d o"kZ dh vof/k iw.kZ ugha gqbZ gSA mHk; i{k dh vkSj ls le; iwoZ ;kfpdk nk;j djus dh vuqefr gsrq nk;j izkFkZuk&i= vUrxZr /kkjk 14 fgUnw fookg vf/kfu;e mfpr vk/kkj ;k gksus ds dkj.k fujLr fd;k tkrk gS ,oa okn izheSP;ksj gksus ds dkj.k fu;ekuqlkj okil fd;k tkrk gSA^^
"File produced.
Heard on the point of maintainability and perused the report of the Munsarim. As per the report of the Munsarim, a period of one year has not yet elapsed since the time of marriage of parties. Leave to file the said petition under section 14 of the Hindu Marriage Act prior to expiration of the aforesaid period has been sought on behalf of both the parties.
Heard, and perused report of the Munsarim.
As per the report of the Munsarim, a period of one year hasn't yet elapsed since the time of marriage of parties. The application filed under section 14 of the Hindi Marriage Act on behalf of both the parties seeking leave to file the petition prior to expiration of the aforesaid period is rejected as having no appropriate ground, and the suit is returned on account of it being premature."
(English Translation by Court)
(Emphasis added)
5. Learned Counsel for appellant contended that impugned order is wholly unreasoned, non sp
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