Allahabad High Court: In an appeal filed under Section 19(1) of the Family Courts Act, 1984 read with Section of the (‘HMA’) filed by the husband against the judgment and decree passed by the Family Court, whereby the suit filed by the husband under Section of the for dissolution of marriage was dismissed and suit filed by the wife under Section 9 of HMA for restitution of conjugal right was decreed in favour of the wife, the Division Bench of Rajan Roy and Om Prakash Shukla*, JJ. while setting aside the impugned judgment, held that once cruelty was proved, the suit for divorce had to be decreed and the suit of the wife had to be dismissed, subject of course to the provision of Section 13A of Act, 1955, but the Family Court has erred on facts and law by not doing so.
Issues:
Whether, in view of the finding of cruelty by the wife towards the husband as returned by the Family Court, the husband is entitled to a decree of divorce and the suit of the wife under Section 9 of HMA is liable to be dismissed?
Whether the Family Court has erred in dismissing the suit of the husband and allowing the suit of the wife despite the finding in favour of the husband on the issue of cruelty in terms of Section 13 (1) (i-a) of the Act, 1955?
Analysis:
The Court noted that the Family Court, after returning a finding that “cruelty” has been inflicted by the wife on the husband, refused to grant divorce to the husband presumably on the ground that the ground of “desertion” could not be proved by the husband.
After taking note of Section 13 of the Act, 1955, the Court said that the various grounds on which the divorce can be granted are mutually exclusive to each other which is evident by use of the disjunctive ‘or’ to separate each ground from the other and there is no reason to read ‘or’ conjunctively as it will lead to absurdity. Thus, cruelty can by itself be a ground for dissolution of marriage.
The Court said that instead of allowing the suit for divorce, the Family Court has decreed the suit of the wife for restitution of conjugal rights which is apparently incongruous with finding on the issue of cruelty recorded in the context of the suit for divorce in favour of the husband and against the wife. This finding itself constituted a valid ground and a reasonable cause within the meaning of Section 9 of the Act, 1955 for the husband not to live with the wife and for the Family Court to dismiss the suit of the wife under Section 9 of the Act, 1955, but this material aspect has been omitted from consideration.
Thus, the Court held that once cruelty was proved, the suit for divorce had to be decreed and the suit of the wife had to be dismissed, subject of course to the provision of Section 13A of Act, 1955, but the Family Court has erred on facts and law by not doing so.
The Court also noted that the husband and wife have been living separately for more than a decade. There are bitter allegations of cruelty from both sides and multiple litigations have taken place between the two in the last more than a decade. This relationship has broken down irretrievably long back. Thus, it is not a fit case for grant of alternative relief of judicial separation under Section 13A of HMA.
Thus, the Court set aside the impugned judgment and decree of the Family Court.
[Dr. Bijoy Kundu v Piu Kundu, First Appeal No. 31 of 2021, Order dated 27-05-2024]
*Order by: Justice Om Prakash Shukla
Advocates who appeared in this case :
Counsel for Appellant: Advocate Rohit Tripathi, Advocate Syed Zulfiqar Husain Naqv, Advocate Shishir Srivastava
Counsel for Respondent: Advocate Saurabh Misra, Advocate Ajeet Kumar Singh, Advocate Ved Prakash Verma, Advocate Devansh Vikram Singh
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